1^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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fliolDgrafiiic 

Sciences 
Corporation 


23  WIST  MAIN  STRIIT 

WIISTIR,N.Y.  UStO 

(716)  •72-4503 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


T 


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0 


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D 
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0 
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empreinte. 

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derniAre  image  de  cheque  mir.iofiche,  selon  le 
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et  de  haut  en  bas.  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


irrata 
to 


pelure, 
tn  A 


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32X 


1  2  3 


1 

2 

3 

4 

5 

6 

AMERICAN 


CRIMINAL  REPORTS. 


A    SERIES 


DESIGNKD  TO  CONTAIN   THE 


(o 


LATEST  AND  MOST  IMPORTANT 

CRIMINAL  CASES 


DETERMINED  IN 


THE  FEDEEAL  AND  STATE  COURTS 

IN  THE  UNITED  STATES, 

AS  WEIJ.  AS 

SELECTED  CASES,  IMPORTANT  TO  AMERICAN  LAWYERS, 

FHOM  THE 

EJ^GLISII,  iRISH,  SCOTCH  AND  CANADIAN  LAW  REPORTS, 
WITH  NOTES  AND  REFERENCES. 


BY  JOHN  G.  HAWLEY, 

Late  Phosbcctiso  Attobnky  at  Dethoit. 


VOL.  I. 


CHICAGO:     , 
CALLAGIIAN   AND   COMPANY, 

LAW  BOOK  PUDLISnERS. 
1S78. 


\  If    I 


i'  1  t       A%  I  ' 


I    '» 


if-^~J=-       1=^ 


<ir  .a.  J  . 


D 


L-O 


/vt9Jo 


Entered  according  to  Act  of  Congress  In  the  year  elKhlcon  hundred  and  8cvcjit5--seveu, 

BY  CAXLAGHAN  &  CO., 

!n  the  office  of  the  Librarian  of  CoDsi-ees,  at  Washington,  D.  C. 


PAVin  Atwood, 

SUrmlnper  iml  J'rlntcr. 

MADISON,    WIS. 


TABLE  OF  CASES. 


4*< 


Page. 


Alibez,  People  v 345 

Auiancus,  People  v 197 

Ajleswoiih  v.  People 

B. 


G04 


477 
6^6 

249 
178 
354 
459 

188 


Page- 

Cott'inaii  V.  Comuionwealtli 293 

Collbery,  Coninion wealth  v 59 

Collins,  State  v 443 

Conyere  r.  State 237 

Cory  r.  State 160 


Ball  f.  State 

Biuclay  r.  State 

Haix'us  r.  State 

]}amc,  People  v 

Baumer  v.  State  

Belmont,  Reginv'.  r . .    

Bennett  r.  State 

Beny  i:  Commonwealth 272 

Bicldl  ,  Stater 490 

Biffgei-staff  i\  Conunonwealtli .....  497 

Bishop,  State  t- 594 

Boardnian,  State  f '^'^1 

Book,  State  v 234 

Brown,  People  r 72 

Browii  r.  State 487 

Boxley  r.  Commonwealth G55 

]3ries\\dck  i\  Mayor  ct  al.  of  Bruns 

wick 

Brown  r.  People 

BulUmlr.  State 

Burns  v.  State 

c. 

Carter,  state  t' 444 

Carter  r.  State 446 

Ca-ssaJy,  State  r 507 

Cearfosa  v.  State 4(50 

Christian,  Queen  v 157 

Christman,  People  v 70 

City  of  Bloomington  v.  HeLliuul GOO 

Clark,  People  v 6G0 

Claik,  State  t> ^ 


B. 


Daniel  r.  State. .  ■  • 

Dat'i.-*,  Stat«  r 

DaA'is  I'.  State  . .  •  • 
Deliuiy  f.  State... 
Doehring  v.  State . 


E. 


Earp  r.  State 

EHinger  c.  State . . . 
Eisenman  i:  State.. 
Eisenman  t\  State. . 
Etites  r.  State 


559 
228 
577 
324 


F. 


Fenn,  State  r 

Ferguson  r.  State. 

Foster,  State  v 

Foulkes,  Queen  v. . 
Frazor  t>.  State  . . . 
Fljnm  v.  State — 


1S7 

'.m 

COG 
86 
GO 


171 

4^() 
4s4 
605 
506 


5S2 
146 
153 
315 
424 


G. 

Galloway  v.  State 437 

Golden  r.  State 586 

(joodenow,  State  v 42 

Graham,  State  r 182 

Grant,  Commonwealth  v  500 

Graves,  State  t' 429 

Gray,  State  v 554 


;■  I      } 


w 


vii 


1  Greer  v.  State 


643 


■  »o- 


IV 


AMERICAN  CRIMINAL  REPORTS. 


Grigg  V.  People 

(Jumble,  Queen  r 

II. 

Hamilton  r.  People 

Hawkins,  Comnionwealth  v.  .  •  ■ 

Heed,  State  r 

Heiland,  City  of  Bloomington  r. 

Hembreo  r.  State 

Hendei-son,  State  r 

Hendrix  r.  State 

Hennessy,  Regina  r 

Hensly  r.  State 

Horbacli  r.  State 

Hunckeler,  People  r 


Vage. 

.  GO'2 
.  '6% 


618 

r.5 
rm 

600 

r.o4 
40;{ 

4(i-') 
;]:!0 
507 


I. 


Mannont  r.  State 

ifarshall  r.  State 

Martin  r.  State 

lyiartinez  v.  State 

]^Iayor  of  Urunswick  i:  Urieswick, 

May,  Stater 

McCoy  r.  People  

McCoy  (-.State 

McCne  r.  Commonwealth 

McCuUoel)  r.  Stat. 


Patro 
.  447 

.  4S2 
.  5:56 

.  4'2() 
.  O.V.) 
.  420 
.     71 

.  nsi) 

.  2(i>! 

.  ;?i.s 


McCutcheon  r.  People 471 

McDade  r.  People 


Isaacs  1'.  State. 


103 


McDonald,  State  /•. 
McKay  r.  State  . . . 
Meister  /'.  People  . . 
Middleton  r.  State 
Middleton  r.  State 
Jliller  r.  State  . . . . 
Moore  r.  Stiite  . . . . 


81 

368 
46 
91 
194 
422 
2:-.0 
613 


N 


Jackson,  Commonwealth  v 74 

John  White,  ex  parte 1C9 

Jones  I".  Commonwealth 262 

Jones  V.  State 218 

Jonesr.State ^10 

K. 

Kean  r.  Commonwealth 199 

Kellar  V.  State 211 

King  V.  State 426 


Landi-ingham  v.  State 105 

Lark  f.  State  563 

Lathrope  v.  State 468 

Lathrope  r.  State 496 

Lavin  v.  People 578 

Le  Bur,  ex  parte 241 

Leiber  r.  Commonwealth 3i''l 

Lightner,  People  r 539 

Liner.  State 615 

Lynch  v.  Commonwealth 283 

Lyons  v.  State 28 

M. 

Madigan,  State  r 542 

Ma'unda  v.  State 225 


646 
.5:12 
436 


Necly,  Stater C36 

Negus,  Queen  r l'>0 

Newman  r.  State  173 

Niles,  Stater 

Nolan  r.  State 

Noregea,  People  r 

o. 

O'Brian  r.  Commonwealth 520 

Olmstead,  People  r 301 

Ortwein  r.  Couunonwealth 297 

Osborn  r.  State  25 


Paulk  V.  State 67 

Porter  r.  Stixte 232 

Potts,  Stater 363 

Price  c.  State 423 

Prhice,  Regina  r 1 


Pruice  r.  State 


545 


E. 


RafFerty  r.  People .  2"^! 

Regina  v.  Belmont » 457 

Regina  v.  Hennessy 403 

Regina,  Stan*  r 438 

Regina  r.  Prince 1 


TABLE  OF  CASES. 


Regina  r.  Sniitli 
Kficli  r.  State.. . 


.  r>ii 


SuuihUts  r.  Peojilo :> Ui 

l^ciinlun,  State  r 1  !"'■'>  ; 

Selioni  r.  State "i!)T 

Shivwin  r.  People <>'')0  : 

Sliiver.-  r.  State  '.'M  ' 

Slattery  r.  People '2i»  ^ 

Smith,  Ii'ejfiiia  r '"ill 

Smith,  State  r .^S0 

Smith  c.  State 240 

Ptjinley,  Stato  r '-'(J!)  I 

StiiiT,  Heg'ina  c 4:{i^ 

Stul.ljs  V.  State <)US  ; 

Sullivan  r.  Peoplt; ;{-j!)  I 

SylTO^ter  p.  State '.'M  ' 


^itu^,  Coiinnonwealth  r 416 

Tihon  f.  State .".(U 


u. 


Walker,  State  r 4:!2 

Walker/'.  State :l()'J 

Ward  c.  I'eople "'(i') 

Waterman  r.  IVople 22') 

Waters  r.  State ::<)7 

Weaver  r.  I'eople "i*i2 

Wellarr.  I'eople -JTG 

White,  .lohn,  Ex  parte lf)9 

Williams,  State  r .'.(j 

Williams  r.  State •.'■_>7 

Williams  (-.State 41:5 

Wilson,  People  /• 1(J7 

Wilson,  People  /■ :!".8 

Wilson,  State /• -VJ!) 

Wilron  r.  (Jonunonwealth <)12 

Wochvard  r.  State ■.'.m 

Wray.  State  r 4-0 

Wright  r.  People -.'44 

Wright  c.  State I'M 

Y. 

Yates  f.  state 4:;4 


z. 


m 


Unilerwood.  State  r 'J-M  ;  Zeizer  r.  State 4-'.) 

rdderzook  r.  Conmionwe.ilth Ml  1  i  Zook  v.  State •J40 


( 


AxMERICAN 


CRIMINAL  REPORTS. 


( 


AnDU( 

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AMERICAN 


CRIMINAL  REPORTS. 


t,!' '  1 1 


Reo.  vs.  Pkince. 
(2  Cr.  Ciw.,  Res.,  VA.) 

Abduction  —  Olrl  under  nirlecn  —  Bonn  fide  and  rectsonahh  hclicf  that  she  was 
older  —  Mens  rca  —  24  and  2')  Vicf.,  ch.  100,  sec.  !>'>. 

The  prisoner  wiw  convicted  under  24  and  2o  Vict.,  ch.  100,  sec.  5.'>,  of  unhiwfully 
tftkinfj  an  unnian-ied  female,  under  the  aj^e  of  sixteen,  out  of  the  possesniou 
and  atrainst  tiie  will  of  her  father.  It  was  proved  that  the  prisoner  did  take 
the  (jirl,  and  that  she  was  under  sixt<'en,  but  that  ho  bona  fide  believed,  and 
had  reasonable  jjiound  for  believintr,  that  she  was  over  sixteen:  Held  (by 
Cock!)uni,  C.  .1.,  Kelly,  C.  15.,  Urownwell,  Cleasby,  Pollock,  and  Amphlett, 
Bl^.,  Hlaekbin-n,  Mellor,  Lush,  drove,  Quain,  Dennian,  Archibald,  Field 
and  liindley,  .I.T.,  IJrett,  .T.,  dissenting,'),  that  the  latter  fact  afforded  no 
defense,  and  that  the  prisoner  was  rif,'htly  convicted. 

Cask  stated  by  Dknman,  J. 

At  the  assizes  for  Surrey,  lickl  at  Kingston-upon-Tliames, 
on  the  24tli  of  ^larch  last,  Tlenry  Prince  was  tried  npon  the 
charge  of  liavinjif  unhiwfully  taken  one  Annie  Phillips,  an  un- 
married u;lrl,  heinf?  under  the  age  of  sixteen  years,  out  of  the 
possession,  and  against  the  will  of  her  father.  The  indictment 
was  framed  under  sec.  55  of  S-i  and  25  Vict.,  ch.  100.*  He  was 
found  guilty. 

All  the  facts  necessary  to  support  a  conviction  existed,  unless 
the  following  facts  constituted  a  defense:  The  girl,  Annie  Phil- 
lips, though  proved  by  her  father  to  he  fourteen  years  old  on  the 


'  By  24  avid  2.")  Vict.,  ch.  100,  sec.  h't,  "Whosoever  shall  unlawfully  take,  or  cause 
to  lie  taken,  any  uimiaiTied  girl,  being  under  the  age  of  sixteen  years,  out  of  the 
possession  and  ajjainst  the  will  of  her  father  or  mother,  or  of  any  other  iwrson 
having  the  lawful  care  or  charge  of  her,  shall  be  guilty  of  a  misdemeanor,  and 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the  court,  to  be 
imprisoned  for  any  term  not  exceeding  two  years,  with  or  without  hard  labor." 
Vol.  1.  — 1 


3  AMERICAN  CRIMINAL  REPORTS 

Gtli  of  April  following,  looked  very  much  older  than  sixteen ; 
and  the  jury  found,  upon  reasonahle  evidence,  that  before  tho 
defendant  took  her  away,  she  had  told  hiui  that  she  was  eighteen, 
and  that  the  defendant  Una  fide  believed  that  statement,  and 
that  such  belief  was  reasonable. 

If  the  court  should  be  of  o]iinion  that  under  these  circnni- 
stances  a  conviction  was  right,  the  defendant  was  to  appear  for 
jmlgiiient  at  the  next  assizes  for  Surrey;  otherwise,  the  convic- 
tion was  to  be  quashed;  see  lierj.  v.  llohlns,  C.  &  X.,  5-10,  and 
Iie(j.  '0.  Olifier,  10  Cox  Cr.  C,  402. 

April  25,  the  court  (Cockburn,  C.  J.,  Braniwell  and  Pollock, 
EB.,  Mellor  and  Brett,  JJ.)  reserved  the  case  for  the  considera- 
tion of  all  the  judges. 

^[ay  20,  the  case  was  argued  before  Cockburn,  C.  J,,  Kelly,  C. 
B.,  ])rainwell,  Cleasby,  Pollock  and  Am])hlett,  BB.,  ]>lackburn, 
Mellor,  Lush,  Brett,  Grove,  Quain,  Denrnan,  Archibald,  Field 
and  Lindley,  J  J. 

No  counsel  appeared  for  the  prisoner. 

Lilley,  for  the  prosecution,  cited  Attorney  General  v.  Lock- 
wood,  9  M.  &  W.,  378;  llerf.  v.  Marsh,  4  D.  &  B ,  2C0;  Jier/.  v. 
Jlojyllns,  Car.  &  M.,  254;  Lee  v.  Simpson^  3  C.  B.,  871;  10  L. 
J.  (C.  P.),  105;  Reg.  v.  Rohlns,  (1);  licfj.  v.  Jt>j^j).i,  4  Cox  Cr.  C, 
107;  AVy.  v.  OUfier,  (2);  Reg.  v.  Ilycock,  12  Cox  Cr.  C,  28;  Reg. 
V.  Booth,  12  Cox  Cr.  C,  231. 

Cockburn,  C.  J.,  referred  to  Reg.  v.  IlJbhert,  Law  Hep.,  1  C. 
C,  184. 

Pollock,  B.,  referred  to  Rex  v.  Lord  Gray,  9  St.  Tr.,  127. 

June  20.    The  following  judgments  were  delivered: 


Brett,  J.  In  this  case,  the  prisoner  was  iiulictcd  under  24 
and  25  A^ict.,  ch.  100,  sec.  55,  for  that  he  did  unlawfully  take  au 
unmarried  girl,  being  under  the  age  of  sixteen  years,  out  of  tho 
possession  and  against  the  will  of  her  father,  and,  according  to 
the  statements  of  the  case,  we  are  to  assume  that  it  was  proved 
on  a  trial  that  he  did  take  an  unmarried  girl  out  of  the  posses- 
sion and  against  the  will  of  her  father,  and  that  when  he  did  so, 
the  girl  was  under  the  age  of  sixteen  years.  But  the  jury  found 
that  the  girl  went  with  the  jirisoner  willingly;  that  she  told  the 
prisoner  that  she  was  eighteen  years  of  age;  that  ho  lielicvcd 
that  she  v/as  eighteen  years  of  age,  and  that  he  had  reasonable 


A. 


RKG.  V.  PRINCE. 


8 


grouml  for  so  helieviiig.  The  qucstiou  is,  whether  upon  siicli 
proof  find  siidi  Hiidings  of  the  jury,  tlie  prisoner  ouglit  or  ought 
not,  ill  point  of  law,  to  be  pronounced  guilty  of  tWe  offense  with 
which  he  was  charged,  lie,  in  fact,  did  each  and  every  thing 
which  is  enumerated  in  the  statute  as  constituting  the  oifense  to 
be  punished,  if  what  he  did  was  done  unlawfully  within  the 
meaning  of  tlie  statute.  If  what  he  did  was  unlawful  wiihin  the 
meaning  of  the  statute,  it  seems  impossible  to  say  that  he  ought 
not  to  be  conv'icte<l.  If  what  he  did  was  not  unlawful  within 
the  meaning  of  the  statute,  it  seems  impossible  to  say  that  he 
ought  to  be  convicted.  The  question,  therefore,  is,  whether 
the  lindings  of  the  jury,  which  are  in  favor  of  the  prisoner,  pre- 
vent what  he  is  proved  to  have  done,  from  being  unlawful  within 
the  meaning  of  the  statute.  It  cannot,  as  it  seems  to  me,  prop- 
erly be  assumed  that  what  he  did  was  unlawful  within  the  mean- 
ing of  the  statute,  for  that  is  the  very  question  to  be  determined. 

Now,  on  the  one  side,  it  is  said  that  the  prisoner  is  proved  to 
liave  done  every  particular  thing  which  is  enumerated  in  the 
act  as  constituting  the  oll'cnsc  to  be  punished,  and  that  there  is 
no  legal  justification  for  what  he  did,  and,  therefore,  that  it  must 
be  held,  as  a  matter  of  law,  that  what  he  did  was  unlawful  with- 
in the  meaning  of  the  statute,  and  that  the  statute  was  therefore 
satisfied,  and  the  crime  completed.  (.)n  the  other  side,  it  is  ar- 
gued that  if  the  facts  had  been  as  the  prisoner  believed  them  to 
be,  and  as  by  the  findings  of  the  jury  he  might  reasonably  be- 
lieve them  to  be,  and  was  deceived  into  believing  them  to  be,  he 
wouhl  have  been  guilty  of  no  criminal  offense  at  all,  and  there- 
fore lie  had  no  criminal  intent  at  all,  and  therefore  what  he  did 
was  not  criminally  unlawful  within  the  meaning  of  the  criminal 
statute  under  which  he  was  indicted. 

It  has  l»een  said  that  even  if  the  facts  had  been  as  the  prisoner 
believed  them  to  1)e,  he  would  still  have  been  doing  a  wrongful 
act.  The  first  ])oint,  therefore,  to  be  considered  would  seem  to 
be;  what  would  have  been  the  legal  position  of  the  prisoner,  if 
the  facts  had  lieen  as  he  believed  them  '■•*  be;  that  is  to  say,  what 
is  the  legal  jxisition  of  a  man  who  without  force  talces  a  girl 
more  than  sixteen  years  of  age,  but  less  than  twenty-one  years  of 
age,  out  of  the  ])os.session  of  her  father  and  .against  his  will? 
The  statute,  -t  and  5  riiil.  tfe  ]\Iary,  ch.  S,  has  been  said  to  recog- 
nize the  legal  right  of  a  father  to  the  possession  of  an  unmarried 


4  AMERICAN  CRIMINAL  REPORTS. 

daughter  np  to  the  age  of  sixteen.    Tlie  statute,  12  Car.  II,  ch. 
2i,  seems  to  recognize  tlie  right  of  a  father  to  such  possessioii  up 
to  the  age  of  twenty-one.    Mr.  Ilargreave,  in  notes  12  and  15  to 
Co.  Lit.,  88  b,  seems  to  deduce  a  right  in  tlie  father  to  j^sses- 
sion  np  to  the  age  of  twenty-one  from  those  two  statutes,  and 
that  such  right  is  to  be  called  in  law  a  right  jure  natune.     If  the 
father's  right  be  infringed,  he  may  a])ply  for  a  /utheas  eorjxts. 
When  the  child  is  produced  in  obedience  to  such  writ,  issued 
upon  the  application  of  a  father,  if  the  child  be  under  twenty  one, 
the  general  rule  is,  that,  "  if  the  child  be  of  an  age  to  exercise  a 
choice,  the  court  leaves  it  to  elect  where  it  will  go;  if  it  be  not 
of  that  age,  and  a  want  of  discretion  would  only  expose  it  to 
danirers  or  seductions,  the  court  must  nuike  an  order  for  its  be- 
ing  placed  in  the  proper  custody,  and  that  undoubtedly  is  the 
custody  of  the  father:"    Lord  Denman,  C.  J.,  in  Hex  v.  Glcn- 
hill,  4  A.  «fe  E.,  624;  but  if  the  child  be  a  female  under  six- 
teen, the  court  will  order  it  to  be  handed  over  to  the  father,  in 
the  absence  of  certain  objections  to  his  custody,  even  though  the 
child  object  to  return  io  the  father.    If  the  child  be  between  six- 
teen and  twenty-one,  and  refuse  to  return  to  the  fatlier,  the  court, 
even  though  the  child  be  a  f3male,  gives  to  the  child  the  election 
as  to  the  custody  in  which  it  will  be.     "  Xow,  the  cases  which 
have  been  decided  on  this  subject  show  that  although  the  father 
is  entitled  to  the  custody  of  his  children  till  they  obtain  the  age 
of  twenty-one,  this  court  will  not  grant  ahaheas  corjnis  to  hand  a 
child  which  is  below  that  age  over  to  its  father,  provi»led  that  it 
has  attained  an  age  of  sufficient  discretion  to  enable  it  to  exor- 
cise a  wise  choice  for  its  interest.    The  whole  question  is,  Mliat 
is  that  age  of  discretion?    We  repudiate  utterly,  as  most  dan- 
gerous, the  notion  that  av  •  intellectual  precocity  in  an  individu- 
al female  child  can  hasten  the  period  which  appears  tohavebe<Mi 
fixed  by  statute  for  the  arrival  of  the  age  of  discretion;  for  that 
very  precocity,  if  uncontrolled,  might  very  probably  lead  to  her 
irreparable  injury.     The  legislature  has  given  us  a  guide,  which 
we  may  safely  follow,  in  pointing  out  sixteen  as  tlie  age  uj)  to 
M'liicli  the  father's  right  to  the  custody  of  his  feniale  child  is  to 
continue;  and  short  of  which  such  a  child  has  no  discretion  to 
consent  to  leaving  him."    Cockburn,  C.  J.,  in  A'crj.  v.  J/owc.'i,  3 
C.  &  E.,  332.     IJut  if  a  man  take  out  of  her  father's  [lossessioii 
without  force  and  with  her  consent  a  daughter  between  sixteen 


liL 


REG.  r.  PRINCE. 


and  twentj-oiie,  tlie  father  would  seem  to  have  no  legal  remedy 
fur  such  taking.  It  may  be  that  the  father,  if  present  at  the 
taking,  might  resist  such  taking,  by  necessary  force,  so  that  to 
an  action  for  assault  by  the  nnm,  he  might  plead  a  justificati(ju. 
Ihit  for  a  mere  such  taking  without  seduction,  there  is  no  action 
which  the  father  could  maintain.  There  never  was  a  writ  appli- 
cable to  such  a  cause  of  action.  The  writ  of  "  ravishment  of 
ward  "  was  onlv  to  such  as  had  the  ri'dit  to  the  marriage  of  the 
infant,  and  was  therefore  only  applicable  whei'e  the  infant  was 
an  heir  to  property,  whose  marriage  was  therefore  vahiable  to 
the  guardian.  See  Ratclijf^ti  C'i«c,  '.I  Co.  Hep.,  ?>~.  Xo  such  ac- 
tion now  exists,  and  if  it  did,  it  would  not  be  applicable  to  any 
female  child,  at  all  events,  not  to  any  who  was  heir-apparent. 
Neither  can  a  man  who  with  her  consent,  and  withont  force, 
takes  a  danghter  who  is  more  than  sixteen  years  old  but  less  tlian 
twenty-one,  out  of  her  father's  i)ossessionor  custody,  be  indicted 
for  such  taking.  There  never  has  been  such  an  indictment. 
The  statute,  o  lien.  VI I,  ch. 'J,  was  enacted  againsi,  "  the  taking 
any  woman  so  against  her  will  unhiwfully,  that  is  to  say,  maid, 
wld(tw,  or  wife,  that  such  taking,  etc.,  be  felony."  It  was  held 
in  Lad;/  FnUuuxnrs  Caac,  Cro.  Car.,  484,  that  the  indictment 
must  further  charge  that  the  defendant  carried  away  the  woman 
with  intent  to  mai'ry  or  delile  her.  Two  things,  therefore,  were 
necessary,  which  are  n(»t  applicable  to  the  point  now  under  dis- 
cussion, luimely,  that  the  taking  should  be  against  the  will  of  the 
person  taken,  and  that  there  should  be  the  intent  to  marry  or  de- 
iile.  The  statute,  4  and  5  Phil,  ifc  Mary,  ch.  S,  deals  with  the 
taking  out  of  or  from  the  possession,  custody  or  government  of 
the  father,  etc.,  any  maid  or  woman  child,  nnmarried,  being  un- 
der the  age  of  sixteen  years.  For  a  mere  unlawful  taking,  the 
punishment  is  imjirisonment  for  two  years.  For  a  taking  and 
marriage,  live  years.  And  the  girl,  if  she  be  more  than  twelve 
years  old,  and  consents  to  the  marriage,  forfeits  her  inheritance. 
The  statute,  9  (ieo.  W,  ch.  31,  sec.  ll»,  is  enacted  against  the  tak- 
ing of  a  woman  against  her  will  with  intent  to  marry  or  defile 
her,  etc.  The  same  statnte,  sec.  ^0,  is  as  to  an  nnmarried  girl 
beinir  nnder  the  age  of  sixteen  years.  It  follows  from  this  re- 
view  that  if  the  facts  had  been  as  the  prisoner,  according  to  the 
iindings  of  the  jury,  believed  them  to  be,  and  had  reasonable 
ground  for  believing  them  to  be,  he  would   have  done  no  act 


l-u! 


■■(■.■;■ 


il 


6 


AMERICAN  CRIMINAL  RErORTS. 


which  has  ever  been  a  criminal  offense  in  En^'land;  he  would 
have  done  no  act  in  respect  of  which  any  civil  action  could  have 
ever  been  maintained  against  him;  he  would  have  done  no  act 
for  which,  if  done  in  the  absence  of  the  father,  and  done  with  the 
contiiming  consent  of  the  girl  the  father  could  have' had  any  le- 
gal remedy. 

We  have  then  next  to  consider  the  terms  of  the  statute,  and 
what  is  the  meaning  in  it  of  the  word  "  unlawfully."  "  The 
usual  system  of  framing  criminal  acts  has  been  to  specify  each 
and  every  act  intended  to  be  subject  to  any  punishment;"  Crim- 
inal Law  Consolidation  Acts,  by  Greaves,  Introduction,  p. 
xxxvii;  and  then  in  some  way  to  decla'-e  whether  the  offense 
is  to  be  considered  as  a  felony  or  as  a  misdemeanor,  and  then 
to  enact  the  punishment.  It  seems  obvious  that  it  is  the  pro- 
liiJMted  acts  which  constitute  the  offense,  and  that  the  ])]irase- 
ology  which  indicates  the  class  of  the  offense  does  not  alter  or 
affect  the  facts,  or  the  necessary  proof  of  those  facts,  which  con- 
stitute the  offense.  There  are  several  usual  forms  of  criminal 
enactment:  "If  any  one  shall  with  such  or  such  intent  do 
such  and  such  acts,  he  shall  be  guilty  of  felony  or  misdemeanor, 
or  as  the  case  may  be."  Wliether  the  offense  is  declared  to  be 
a  felony  or  a  misdemeanor  depends  upon  the  view  of  the  legisla- 
tiire  as  to  its  heinousness.  But  the  class  in  Avhich  it  is  ])]aced 
does  not  alter  the  proof  requisite  to  support  a  charge  of  being 
guilty  of  it.  Under  such  a  form  of  enactment,  there  must  be 
proof  that  the  acts  were  done,  and  done  with  the  specilicd  intent. 
Other  forms  are:  "If  any  one  shall  feloniously  do  such  and 
such  acts,  he  shall  be  liable  to  i)enal  servitude,"  etc.;  or,  "If 
anyone  shall  unlawfully  do  such  and  such  acts,  he  shall  be  lialtlo 
to  imprisonment,"  etc.  The  ffrst  of  these  forms  makes  the  of- 
fense a  felony  by  the  use  of  the  word  "feloniously;  "  the  second 
makes  the  offense  a  misdemeanor  by  the  use  of  the  word  "  un- 
lawfully." The  words  are  used  to  declare  the  class  of  the  offense. 
But  they  denote  also  a  part  of  that  which  constitutes  the  offense. 
They  denote  that  which  is  equivalent  to,  though  not  the  same 
as,  the  specific  intent  mentioned  in  the  ffrst  form,  to  wliicli 
allusion  has  been  made.  Besides  denoting  the  class  of  the 
cttense,  they  denote  that  something  more  must  be  jn-oved  than 
merely  that  the  prisoner  did  the  prohibited  acts.  Tliey  do  not 
necessarily  show  that  evidence  need,  in  the  first  instance,  bo 


r^^iL 


REG.  V.  PRINCE.  f 

ffiven  of  more  than  that  the  prisoner  did  the  prohibited  acts; 
but  they  do  denote  tliat  the  jury  must  find,  as  a  matter  of  ulti- 
iiiiito  proof,  more  than  tliat  the  prisouer  did  tlie  prohibited  acts. 
What  is  it  that  tlic  jury  must  be  satisfied  is  proved,  beyond 
luiMvly  tliat  tlie  person  did  tlie  proliibited  acts?  It  is  suggested 
tliat  they  must  be  satisfied  that  the  jtrisoner  did  the  acts  with  a 
criminal  mind,  that  there  was  ^^  incns  rea.''^  The  true  meaning 
(»f  that  ])hrase  is  to  ije  discussed  hereafter.  If  it  be  true  that 
this  must  bo  proved,  the  only  difi'ereuco  between  the  second 
forms  and  the  first  form  of  enactment  is,  that  i"  the  first  the  in- 
tent is  specified,  but  in  the  second  it  is  left  generally  as  a  crimi- 
nal state  of  mind.  As  between  the  two  second  forms,  the  evidence, 
either  direct  or  inferential,  to  prove  the  criminal  state  of  mind, 
must  be  the  same.  The  ]>roof  of  the  state  of  the  mind  is  not  al- 
tered or  aflfected  by  the  class  in  which  the  ofi'ense  is  placed. 

Another  common  form  of  enactment  is,  "  If  any  person  know- 
ingly, Avil fully  and  maliciously  do  such  or  such  acts,  he  shall  be 
guilty  of  felony,"  or  "if  an}'  knowingly  and  wilfully  do  such  or 
such  acts,  he  shall  be  guilty  of  misdemeanor,"  or  "  if  any  know- 
ingly, wilfully  and  feloniously  do  such  or  such  acts,  he  shall  be 
liable,"  etc.,  or  "if  any  knowingly  and  unlawfully  do  such  and 
such  acts,  he  shall  be  liable,"  etc.  Tlie  same  e.\])lanation  is  to 
be  given  of  all  these  forms  as  between  each  other  as  l)efore. 
They  are  mere  diflerences  in  form.  And  though  they  be  all,  or 
tlioii^:h  several  of  them  be  in  one  consolidating  statute,  tliev  are 
not  to  be  construed  by  contrast.  "  If  any  ([uestion  should  arise  in 
which  any  comparison  may  be  instituted  between  ditt'erent  sec- 
tions of  any  one  or  several  of  these  acts,  it  must  be  carefully 
borne  in  mind  in  what  manner  these  acts  were  framed.  Xone 
of  them  was  rewritten;  on  the  contrary,  each  contains  enaet- 
meiits  taken  from  dillerent  acts  passed  at  difierent  times  and 
with  difierent  views,  and  fre(pieiitly  varying  from  each  other  in 
phraseology;  and,  for  the  reasons  stated  in  the  introduction, 
these  enactments  for  the  most  part  stand  in  these  acts  with  little 
or  no  variation  in  their  phraseology,  and  conse(|uently  their  dif- 
ferences in  that  respect  will  be  found  generally  to  remain  in 
these  acts.  It  follows,  theivforo,  from  hence,  that  any  argument 
as  to  a  difi'erence  in  the  intention  of  the  legislature  which  may 
be  drawn  from  a  difi'erence  in  the  terms  of  one  clause  from  those 
in  another,  will  be  entitled  to  no  weight  in  the  construction  of 


8 


AMERICAN  CRIMINAL  RErORTS. 


such  clauses,  for  that  argument  can  only  ai)plj  with  force  wliere 
an  act  is  framed  from  beginning  to  end  with  one  and  tlie  same 
view,  and  witli  the  intention  of  making  it  thoroughly  consistent 
throughout,"    Greaves  on  Criminal  Law  Consolidation  Acts,  p. 
3.    I  Jiave  said  tliat  as  between  each  other  the  same  explanation 
is  to  be  given  of  these  latter  forms  of  enactment  as  of  the  former 
mentioned  in  this  judgment.     But  as  between  these  latter  and 
the  former  forms,  there  is  the  iiitrodnction  in  the  latter  of  such 
M-ords    as    "knowingly,"   "wilfully,"  "maliciously."     "Wil- 
fully "  is  more  generally  applied  when  the  prohibited  acts  arc  in 
their  natural  consequences  not  necessarily  or  very  probably  nox- 
ious to  the  public  interest,  or  to  individuals,  so  that  an  evil  mind 
is  not  the  natural  inference  or  consequence  to  be  drawn  from  the 
doing  of  the  acts.     The  presence  of  the  word  requires  somewhat 
more  evidence  on  the  part  of  the  prosecution  to  make  out  a 
prhiui  facie  case,  than  evidence  that  the  prisoner  did  the  pro- 
hibited  acts.    So  as   to   the  word  "maliciously,"  it   is    usual 
where  the  prohil)ited  acts  may  or  may  not  be  such  as  in  them- 
selves import  imma  facie  a  malicious  mind.     In  the  same  way 
thu  word  "  knowingly  "  is  used,  where  the  noxious  character  of 
the  prohibited  acts  depends  ujion  knowledge  in  the  prisoner  of 
their  noxious  effect,  other  than  the  mere  knowledge  that  he  is 
doing  the  acts.    The  presence  of  the  word  calls  for  more  evi- 
dence on  the  part  of  the  prosecution.     But  the  absence  of  the 
word  does  not  prevent  the  prisoner  from  proving  to  the  satisfac- 
tion of  the  jury,  that  the  mens  rca,  to  be  jn'i ma  facie  inferred 
from  his  doing  the  prohibited  acts,  did  not  in  fact  exist.     In 
Rex  V.  Marsh,  2  B.  &  C,  717,  the  measure  of  the  effect  of  the 
presence  in  the  enactment  of  the  word   "  knowingly"  is  ex- 
plained.   The  information  and  conviction  were  against  a  carrier 
for  having  game  in  liis  possession  contrary  to  the  statute,  5 
Anne,  ch.  1-t,  which  declares  "that  any  carrier  having  game  in 
his  possession  is  guilty  of  an  offense,  uidess  it  be  sent  by  a  qual- 
ified person."    The  only  evidence  given  was,  that  the  defendant 
was  a  carrier,  and  that  he  had  game  in  his  wagon  on  the  road. 
It  was  objected  that  there  was  no  evidence  that  the  defendant 
knew  of  the  presence  of  the  game,  or  that  the  person  who  sent  it 
was  not  a  qualified  person.    The  judges  held  that  there  was  suffi- 
(Aawi  prima  facie  evidence,  and  that  it  was  not  rebutted  by  the 
defendant  by  sufficient  proof  on  his  part  of  the  ignorance  sucr. 


REG.  V.  PRINCE. 


:^ 


gostcJ  on  Ills  l>elialf.  The  judgtiients  clearly  import,  that  if  tho 
(lefeiulaiit  could  have  satisfied  the  jury  of  his  ignorance,  it  would 
have  heen  a  defense,  though  the  word  "  knowingly  "  was  not  in 
the  statute.  In  other  words,  that  its  presence  or  absence  in  tho 
Ptatute  only  alters  the  burden  of  proof.  "  Then,  as  to  knowledge, 
the  clause  itself  says  nothing  about  it.  If  that  had  been  intro- 
duced, evidence  to  establish  knowledge  must  have  been  given  on 
the  j)art  of  the  prosecutor;  but  under  this  enactment  the  party 
charged  must  show  a  degree  of  ignorance  sufficient  to  excuse 
him.  Here  there  was  pi'liaa  facie  evidence  that  the  game  was 
in  his  possession  as  carrier.  Then  it  lay  on  the  defendant  to  re- 
but that  evidence:"  I'agley,  J.  "The  game  was  found  in  his 
wagon  employed  in  the  course  of  his  business  as  a  carrier.  That 
raises  a  presumj)tlon  prima  facie  that  he  knew  it,  and  that  is  not 
rebutted  by  the  evidence  given  on  the  part  of  the  defendant:  " 
Littledale,  J. 

From  these  considerations  of  the  forms  of  criminal  enactments, 
it  would  seem  that  the  ultimate  i>roof  necessary  to  authorize  a 
conviction  is  not  altered  by  the  i)resence  or  absence  of  the  word 
knowingly,  though  by  its  presence  or  absence  the  burden  of  proof 
is  altered;  and  it  would  seem  that  there  must  be  proof  to  satisfy 
a  jury  ultimately  that  there  was  a  criminal  mind,  or  Duum  rea,  in 
every  oli'ense  really  charged  as  a  crime.  In  some  enactments,  or 
common  law  maxims  of  crime,  and  therefore  in  the  indictments 
chartriniT  the  committal  of  those  crimes,  the  name  of  the  crime 
imports  that  a  mens  rea  must  be  proved,  as  in  murder,  burglary, 
etc.  In  some  the  viens  rea  is  contained  in  the  specific  enact- 
ments as  to  the  intent  which  is  made  a  part  of  the  crime.  In 
some  the  word  "  feloniously  "  is  used,  and  in  such  oases  it  has 
never  been  doubted  but  that  a  felonious  mind  must  ultimately 
be  found  by  the  jury.  In  enactments  in  a  similar  form,  but  in 
which  the  prohibited  acts  are  to  be  classed  as  a  misdemeanor,  the 
word  "  uidawfnlly  "  is  used  instead  of  the  word  "  feloniously." 
What  reason  is  there  why,  in  like  manner,  a  criminal  mind,  or 
vienft  rea,  must  not  ultimately  be  found  by  the  jury  in  order  to 
justify  a  conviction,  the  dsitlnctlon  always  being  observed,  that 
in  some  cases  the  proof  of  the  committal  of  the  acts  may^wv'ma 
facie,  either  by  reason  of  their  own  nature,  or  by  reason  of  the 
form  of  the  statute,  import  tho  proof  of  the  mens  rea?  But  even 
in  those  cases  it  is  open  to  the  prisoner  to  rebut  tho  prima /tic  le 


y. 


i 


|ii  '1 


,,;, 


10 


AMERICAN  CRIMINAL  RErORTS. 


')    . 


evidence,  so  tliat  if,  in  the  end,  the  jury  ai'e  satisfied  tliat  there 
vas  no  criminal  mind,  or  mens  rea,  tliere  cannot  be  a  conviction 
in  England  for  tliat  which  is  by  the  law  considered  to  be  a  crime. 
There  are  enactments  which  by  their  form  seem  to  constitute 
the  prohibited  acts  into  crime,  and  yet  by  virtue  of  which  enact- 
ments the  defendants  charged  with  the  committal  of  the  prohib- 
ited acts  have  been  convicted  in  the  absence  of  the  knowledge  or 
intention  sujiposed  necessary  to  constitute  a  mens  rea.  Such  arc 
the  cases  of  trespass  in  ])ursuit  of  game,  or  of  piracy  of  literary 
or  dramatic  works,  or  of  the  statutes  passed  to  protect  the  rev- 
enue, l^ut  the  decisions  have  beta  based  upon  the  judicial 
declaration  that  tae  enactments  do  not  constitute  the  prohibited 
acts  into  crime  or  ofteu-es  against  the  crown,  but  only  prohibit 
them  for  the  purpose  of  protecting  the  individual  interest  of  in- 
dividual persons,  or  of  the  revenue.  Thus,  in  Leo  v.  ^'i7nj}So/i, 
3  C.  B.,  871 ;  15  L.  J.  (C.  P.),  105,  in  an  action  for  penalties  for 
the  representation  of  a  dramatic  piece,  it  was  held  that  it  was 
not  necessary  to  show  that  the  defendant  knowingly  invaded  the 
plaintifi"s  right.  But  the  reason  of  the  decision  given  by  AVilde, 
C.  J.,  3  C.  B., at  p.  883  is:  "The  object  of  the  legislature  was  to 
protect  authors  against  the  piratical  invasion  of  their  rights.  In 
the  sense  of  having  committed  an  offense  against  the  act,  of  hav- 
ing done  a  thing  that  is  prohibited,  the  defendant  is  .in  offender. 
Bat  the  plaintiff's  rights  do  not  depend  upon  the  innocence  or 
guilt  of  tiie  defendant."  So  the  decision  in  Morden  v.  Porter, 
7  C.  B.  (X.  S.),  G41;  29  L.  J.  (M.  C),  218,  seems  to  be  made  to 
turn  upon  the  view  that  the  statute  was  passed  in  order  to  pro- 
tect the  individual  property  of  the  landlord  in  game  reserved  to 
him  by  his  lease  against  that  which  is  made  a  statutory  trespass 
against  him,  although  his  land  is  in  the  occupation  of  his  tenant. 
There  are  other  cases  in  which  the  ground  of  decision  is  that 
specific  evidence  of  knowledge  or  intention  need  not  be  given, 
because  the  nature  of  the  prohibited  acts  is  such  that,  if  done, 
they  must  draw  with  them  the  inference  that  they  were  done 
with  the  criminal  mind  or  intent,  which  is  a  part  of  every  crime. 
Such  is  the  case  of  the  possession  and  distribution  of  obscene 
books.  If  a  man  possesses  them,  and  distributes  them,  it  is  a 
necessary  inference  that  he  must  have  intended  that  their  first 
effect  must  be  that  which  is  prohibited  by  statute,  and  that  ho 
cannot  protect  himself  by  showing  that  his  ultimate  object  oi* 


REG.  V.  PRINCE. 


11 


I 


BGcontlary  intent  waa  not  inimoi-al.  12e{/.  v.  TllcJdin,  Law  Eej)., 
3  Q.  13.,  3(50.  This  and  similar  decisions  ^o  rather  to  sliow  wliat 
is  mens  rea,  than  to  show  whether  there  can  or  cannot  be  con- 
viction for  crime  proper,  wltlioiit  mens  rea. 

As  to  the  hast  question,  it  has  become  very  necessary  to  ex- 
amine the  authorities.  In  I'lackstone's  Commentaries  by  Steplien, 
2d  c(h,  vol.  IV,  book  0,  Of  Crimes,  p.  98.  "  And  as  a  vicious  will 
without  a  vicious  act  is  no  civil  crime,  so>  on  the  other  hand,  an 
unwarrantable  act  without  a  vicious  will  is  no  crime  at  all,  so 
that,  to  constitute  a  crime  ajj^ainst  human  laws,  there  must  be 
first  a  vicious  will,  and  secondly  an  unlawful  act  consctpient  up- 
on such  vicious  will.  Now  there  are  three  cases  in  which  the 
will  docs  not  join  with  the  act:  1.  "Where  there  is  a  defect  of  un- 
derstajidinj;,  etc.  2.  Where  there  is  understandin<^and  will  suf- 
ficient residing  in  the  part}',  but  not  called  forth  and  exerted  at 
the  time  of  the  action  done,  which  is  the  case  of  all  offenses  com- 
mitted by  chance  or  ignorance.  Here  the  will  sits  neuter,  and 
neither  concurs  with  the  act  nor  disagrees  to  it."  And  at  p. 
10.');  "Ignorance  or  mistake  is  another  defect  of  will,  when  a 
man.  Intending  to  do  a  lawful  act,  does  that  which  is  unlawful; 
for  here  the  deed  and  the  will  acting  sei)arately,  there  is  not  that 
conjunction  between  them  which  is  necessary  to  form  a  crimi- 
nal act.  But  this  must  be  an  ignorance  or  mistake  in  fact,  and 
not  an  error  in  point  of  law.  As  if  a  man,  intending  to  kill  a 
thief  or  housebreaker  in  his  own  house,  by  mistake,  kills  one  of 
his  family,  this  is  no  criminal  action,  but  if  a  man  thinks  ho 
has  a  right  to  kill  a  i)erson  excommunicated  or  outlawed  wlicre- 
ever  he  meets  him,  and  does  so,  this  is  wilful  murder."  In  Fowl- 
er v.  Piuhjd,  7  T.  11.,  50!>,  the  jury  found  that  they  thought  the 
intent  of  the  jdaintiii' in  going  to  London  was  laudable;  that  ho 
had  no  Intent  to  defraud  or  delay  his  creditors,  but  that  delay 
did  actually  hai)pen  to  some  creditors.  Lord  Kenyon  said, 
"  Bankruptcy  is  considered  as  a  crime,  and  the  bankru])t  in  the 
old  laws  is  called  an  offender;  but  it  is  a  principle  of  natural  jus- 
tice and  of  our  laws  that  actus  non  reumfaclt,  nisi  mens  sit  rea. 
The  Intent  and  the  act  must  both  concur  to  constitute  the  crime." 
And  again:  "  I  would  adopt  any  construction  of  the  statute  that 
the  words  will  bear,  in  order  to  avoid  such  monstrous  eonse- 
fpiences  as  would  manifestly  ensue  from  the  construction  con- 
tended for." 


12 


AMERICAN  CRIMINAL  REPORTS. 


Ill  Umrnc  v.  Gavton,  2  E.  &  E.,  10,  2S,  L.  J.  (^f.  C),  210,  the 
respondents  were  clmrf^'cd  upon  an  infornmtioii,  for  liuvin^'  sent 
oil  of  vitriol  by  the  Great  Western  Kailway,  without  marking'  or 
stating'  the  nature  of  the  goods.  V>y  20  and  21,  Yict.,  ch.  4:J,  sec. 
IGS,  "  every  pers«»n  wlio  shall  send  or  cause  to  he  sent  by  the 
said  railway,  any  oil  of  vitriol,  shall  distinctly  mark  or  state  the 
nature  of  such  goods,  etc.,  on  pain  of  forfeiting,  etc."  Uy  sec. 
200,  such  penalty  is  recoverable  in  a  summary  way  before  justices, 
M-ith  power  to  imprison,  etc.  Tlie  resiK)ndeiit  hml  in  fact  sent 
oil  of  vitriol  unmarked,  but  the  justices  found  that  there  was  no 
guilty  knowledge,  but,  on  the  contrary,  the  res]>ondents  acted 
under  the  full  belief  that  the  goods  were  correctly  described,  and 
had  previously  used  all  proper  diligence  to  inform  themselves  of 
the  fact.  They  refused  to  convict.  It  must  be  observed  that  in 
that  case,  as  in  the  present,  the  respondents  did  in  fact  the  i>ro- 
hibited  acts,  and  that  in  that  case,  as  in  this,  it  was  found,  as  the 
\iltimate  proof,  that  they  were  deceived  into  the  belief  of  a  dif- 
ferent and  non-criminal  state  of  facts,  and  had  used  all  i»roper 
diligence.  The  case  is  stronger,  perhaps,  than  the  present,  by 
reason  of  the  word  "unlawfully  "  being  absent  from  that  stat- 
ute. The  court  upheld  the  decision  of  the  magistrates,  ludding 
that  the  statute  made  the  doiiig  of  the  prohibited  acts  a  crime, 
and  therefore  that  there  must  be  a  criminal  mind,  ■which  there 
was  not.  "  As  to  the  latter  reason,  I  think  the  justices  were  j)er- 
fectfully  right;  actus  noii  reiunfacit,  nwi  mens  sit  rea.  The  act 
with  which  the  respondents  were  charged  is  an  offense  created  by 
statute,  and  for  which  the  person  committing  it  is  liable  to  a 
penalty  or  to  imprisonment;  not  only  was  there  no  j)ro(>f  of 
guilty  knowledge  on  the  part  of  the  res])ondents,  but  the  pre- 
sumption of  a  guilty  knowledge  on  their  part,  if  any  could  be 
raised,  was  rebutted  by  the  proof  that  a  fraud  had  I)een  practised 
on  them.  I  am  inclined  to  think  they  were  civilly  liable."  Lord 
Campbell,  C.  J.  "  I  was  inclined  to  think  at  first,  that  the  pro- 
vision was  merely  protective;  but  if  it  created  a  criminal  of- 
fense, which  I  am  not  prepared  to  deny,  then  the  mere  sending 
by  the  respondents,  without  a  guilty  knowledge  on  their  jiart, 
would  not  render  them  criminally  liable,  although,  as  they  took 
Nicholas's  word  for  the  contents  of  the  parcel,  they  would  be 
civilly  liable."    Erie,  J. 

In  Taylor  v.  Newman,  4  B.  &  S.,  89,  32,  L.  J.  (M.  C),  ISO, 


REG.  V.  PRINCE. 


SI 


tlie  iiiforinntlon  was  under  24  and  IT),  Vict.,  ch.  90,  sec.  2'^.  "  "Who- 
soever shall  unhiwfully  and  wilfully  kill,  etc.,  any  pij,'ei  n,  etc." 
The  appellant  shot  pigeons  on  his  farm  belonging  to  a  neighbor. 
The  justices  convicted,  on  the  ground  that  the  appellant  was  not 
justified  by  law  in  killing  the  pigeons,  and,  therefore,  that  the 
killing  was  unlawful.  In  other  words  they  held  that  the  only 
meaning  <»f  "  uidawfully  "  in  the  statute  was  "without  legal  jus- 
titication."  Tiie  court  set  aside  the  conviction.  "  I  think  that 
the  statute  was  not  inteiuled  to  apply  to  a  case  in  which  there 
was  no  guilty  mind,  and  where  the  act  was  done  by  a  person  un- 
der the  honest  belief  that  he  was  exercising  a  right."     Mellor  J. 

In  Burl-master  v.  Jiei/nohls,  13  C.  \^.  (X.  S.),  02,  an  informa- 
tion was  laid  for  uidawfully,  by  a  certain  contrivance,  attempt- 
ing to  obstruct  or  prevent  the  ])urpo8e8  of  an  election  at  a  vestry. 
The  evidence  was  that  that  defendant  did  obstruct  the  election 
because  he  forced  himself  and  others  into  the  room  before  eight 
t»'cl(jck,  believing  that  eight  o'clock  was  passed.  The  question 
asked  was,  whether  an  intentional  obstruction  by  actual  violence 
is  an  otlVnse,  etc.  This  (piestioo  the  court  answered  in  the 
affirmative,  so  that  there,  as  here,  the  defendant  had  done  the 
prohiltited  acts.  But  Erie,  J.,  continued:  "  I  accompany  this 
statement  (i.  e.,  the  answer  to  the  question)  by  a  statement  that 
ujjon  the  facts  set  forth  I  ana  unable  to  see  that  the  magistrate 
has  come  to  a  wrong  conclusion.  A  man  cannot  be  said  to  be 
guilty  of  a  delicit,  unless  to  some  extent  his  mind  goes  with  the 
act.  Here  it  seems  that  the  respondent  acted  in  the  belief  that 
he  had  a  right  to  enter  the  room,  and  that  he  had  no  intention 
to  do  a  wrongful  act." 

In  Jii(j.  V.  Jfihhcrt,  Law  Kep.,  1  C.  C,  184,  the  prisoner  was 
indicted  under  the  section  now  in  question.  The  girl,  who  lived 
with  her  father  and  mother,  left  her  home  in  company  with 
another  girl  to  go  to  a  Sunday  school.  The  prisoner  met  the  two 
girls  and  induced  them  to  go  to  Manchester.  At  Manchester  he 
took  the  girl  to  a  public  house  and  there  seduced  the  girl  in 
question,  who  was  under  sixteen.  The  prisoner  made  no  inquiry 
and  did  not  know  who  the  girl  was,  or  whether  she  had  a  father  or 
mother  living  or  not,  but  he  had  no  reason  to,  and  did  not  believe 
that  she  was  a  girl  of  the  town.  The  jury  found  the  prisoner 
guilty,  and  Lush,  J.,  reserved  the  case.  In  the  Court  of  Crimi- 
nal Appeals,  Bovill,  C.  J.,  Channell  and  Pigott,  BB.,  Byles  and 


\ 


u 


AMERICAN  CRIMINAL  RKPORTS. 


Lu  h,  JJ.,  qimslieil  tlic    conviction.    Bovill,  C.  J.:    "In  the 
]n\.-tcnt  case  there  is  no  statement  of  any  finding' of  fact  that  tlio 
])ri»(»ner  know,  or  had  reason  to  h(.'lieve,  that  the  ^'irl  wart  nnder 
the  hiwful  care  or  cliarge  of  lier  father  or  motlier,  or  any  other 
person.    In  the  absence  of  any  finding  of  fact  on  tliiri  \ui\nt,  tlio 
conviction  cannot  bo  finpported."    Tiiis  case  was  founded  on 
L\r/.  V.  Green,  3  F.  *fc  F.,  274,  before  :^^artin,  V,.     The  girl  waa 
under  fourteen,  and  lived  witli  her  fatlier,  a  fisherman,  at  Soutli- 
end.    The  jmsoncrs  saw  lier  in  tlie  street,  by  herself,  and  induced 
her  to  go  with  them.    They  took  her  to  a  lonely  house,  and 
there  Green  had  criminal  intercourse  with  her.     !Martin,  J5.,  di- 
rected an  acquittal;     "There  must,"  he  said,  "bo  a  taking  out  of 
the  possession  of  the  father.     Here  the  prisoners  picked  uj)  tlio 
girl  in  the  street,  and  for  anything  that  appeared,  they  miglit 
not  have  known  that  the  girl  had  a  father.    The  girl  was  not 
taken  out  of  the  possession  of  any  one.    The  prisoners,  no  doubt, 
luid  done  a  very  immoral  act,  but  the  question  was,  whether  they 
Lad  committed  an  illegal  act.    The  criminal  law  ouglit  not  to  bo 
strained  to  meet  a  case  which  did  not  come  within  it.     The  act 
of  the  prisoners  was  6cai)dalo:is,  but  it  was  not  any  legal  oflenso.'* 
In  each  of  these  cases  the  girl  was  surely  in  the  legal  possession 
of  her  father.    The  fact  of  her  being  in  the  street  .'it  the  time 
could  not  possibly  prevent  her  from  being  in  the  legal  possession 
of  her  father.     Everything,  therefore,  i)rohibited,  was  done  by 
the  prisoner  in  fact.    But  in  each  case  the  ignorance  of  facts  was 
held  to  prevent  the  case  from  being  the  crime  to  be  ])unished. 

In  Jieff.  V.  Tlnchler,  1  F.  &  F.,  513,  in  a  case  nnder  this  sec- 
tion, Cockburn,  C.  J.,  charged  the  jury  thus:     "It  was  clear  the 
jjrisoner  had  no  right  to  act  as  he  had  done  in  taking  the  cliiid 
out  of  Mrs.  Barnes'  custody.     But  inasmuch  as  no  imi)n.])er 
motive  was  suggested  on  the  part  of  the  profiecution,  it  might 
very  well  be  concluded  that  the  prisoner  wished  the  child  to  live 
with  him,  and  that  he  meant  to  discharge  the  ])romise  which  he 
alleged  he  had  made  to  her  father,  and  that  he  did  not  suppose 
he  was  breaking  the  laws  when  he  took  the  child  away.     This 
being  a  criminal  prosecution,  if  the  jury  should  take  this  view 
of  the  case,  and  be  of  opinion  that  the  prisoner  honestly  be- 
lieved that  he  had  a  right  to  the  custody  of  the  child,  then  al- 
though the  prisoner  was  not  legally  justified.  ^U'  would  be  enti- 
tled to  an  acqiiittal."    The  jury  found  the  j ih;oner  not  guilty. 


,1(1 


RKO.  r.  PRINCE. 


Iff 


In  Ri'(j.  V.  Slci'jy,  8  Cox  Cr.  C,  472,  tlio  priridiier  luul  jmsses- 
filon  of  ^overiiinent  utores,  Homo  of  wliich  were  miirkL'd  witlj  tlio 
broiitl  iiiTow.  The  jury,  in  unswc'r  to  u  (|uesti(»n  wliuther  tho 
prisoner  know  that  the  copper,  or  any  ])art  of  it,  was  marked, 
answered,  "  We  have  not  sulUcient  ovidenuo  befory  us  to  show 
that  he  knew  it." 

Tho  Court  of  Crijninal  Ai)j)eal  held  that  tho  prisoner  could 
not  bo  convicted.  Cockburn,  C.  J.:  ^^  Actus  no n  ream  fac It, 
vlnl  menu  Hit  ren  is  tho  foundation  of  all  criminal  ])ro(!edure. 
The  ordinary  principle  that  there  must  be  a  guilty  miml  to  con- 
stitute a  guilty  act  applies  to  this  case,  and  must  be  ini])orted 
into  this  statute,  as  it  was  held  in  licg.  v.  Cohen,  S  Cox  Cr.  C, 
41;  where  this  conclusion  of  the  law  was  stated  by  Jllll,  J., 
with  his  usual  clearness  aiul  power.  It  is  true  that  the  statute 
says  nothing  about  knowledge,  but  this  must  be  inij)orte<l  into 
the  statute."  Pollock,  C.  13.,  Martin,  U.,  Cromi)tou  and  Willes, 
JJ.,  agreed. 

In  the  case  of  liry.  v.  Rohliis,  C.  &  K.,  450,  and  linj.  v.  OHfi- 
cr,  10  Cox  Cr.  C,  402,  there  was  hardly  such  evidence  as  was 
given  In  this  case,  as  to  tho  prisoner  being  deceived  as  to  the  age 
of  the  girl,  and  having  reasonable  ground  to  believe  the  decep- 
tion, and  there  certainly  wore  no  findings  by  tho  jury  equivalent 
to  the  findings  in  this  case. 

In  Rnj.  V.  Forhcs  and  Wehh,  10  Cox.  Cr.  C,  302,  although  tho 
policeman  was  in  plain  clothes,  the  prisoner  had  strong  ground 
to  suspect,  if  not  to  believe,  that  ho  was  a  ])ollceman,  for  the  case 
states  that  they  repeatedly  called  out  to  rescue  the  boy  and  pitch 
into  the  constable. 

T'^pon  all  the  cases,  I  think  it  is  proved  that  there  can  bo  no 
conviction  for  crime  in  Enghuul  in  tho  absence  of  a  criminal 
mind,  or  mens  rea. 

Then  comes  tho  question,  what  Is  tho  true  meaning  of  the 
]ihraseJ  I  do  iu)t  doubt  that  it  exists  where  the  pru'Oner  know- 
ingly does  acts  which  would  constitute  a  crime  If  the  result  were 
as  he  anticipated,  but  in  which  the  result  may  not  improbably 
end  by  bringing  the  offense  within  a  more  serious  class  of  crime. 
As  If  a  man  strikes  with  a  dangerous  weapon,  with  intent  to  do 
irrlevous  bodllv  harm,  and  kills,  tho  result  makes  the  crime 
murder.  The  prisoner  has  run  the  risk.  So,  if  a  prisoner  do  the 
prohibited  acts,  witliout  caring  to  consider  what  the  truth  is  as 


,  f¥ 


# 


AMERICAN  CRIMINAL  RErOKTS. 


to  facts -as  if  a  prisoner  were  to  abduct  a  girl  under  sixteen 
without  caring  to  consider  whether  slie  was  in  trutli  under  six- 
teen,  he  runs  the  risk;  so,  if  he,  without  abduction, defiles  a  girl 
wlio  is  in  fact  under  ten  years  old,  with  a  belief  that  she  is  be- 
tween ten  and  twelve.  If  tlie  facts  were  as  he  believed,  he  would 
be  committing  tlie  lesser  crime.  Then  he  runs  the  risk  of  hii=. 
crime  resulting  in  the  greater  crime.  It  is  clear  tliat  ignorance 
of  the  law  does  not  excuse.  It  seems  to  me  to  follow  that  the 
maxim  as  to  me7is  rea  a])i)lies  whenever  the  facts  which  are  pres- 
ent to  the  prisoner's  mind,  and  which  he  has  reasonable  ground 
to  believe,  and  does  believe  to  be  the  facts,  would,  if  true,  make 
his  acts  no  criminal  offense  at  all. 

It  may  be  true  to  say  that  the  nieajiing  of  the  word  "unlaw- 
fully "  is,  that  the  prohibited  acts  be  done  without  justification 
or  excuse.  I,  of  course,  agree  that  if  tliere  be  a  legal  justiMca- 
tion  there  can  be  no  crime;  but  I  come  to  the  conclusion  that  a 
mistake  of  facts,  on  reasonable  grounds,  to  the  extent  that  if  the 
facts  were  as  believed,  the  acts  of  the  prisoner  would  make  him 
guilty  of  no  criminal  offense  at  all,  is  an  excuse,  and  that  such 
excuse  is  implied  in  every  criminal  charge  and  every  criminal 
enactment  in  England.  I  agree  with  Lord  Kenyon  that  ''  such 
is  our  law,"  and  with  Cockburn,  C.  J.,  that  "  such  is  the  founda- 
of  all  criminal  procedure." 


age. 


The  follov.-ing  judgment  (in  which  Cockburn.  C.  J.,  Mellor, 
Lush,  Quain,  Deiiman,  Archibald,  Field  and  Lindley,  JJ.,  and 
Pollock,  li.  concurred)  was  delivered  by 


Blackiukx,  J.  In  this  case  we  must  take  it  as  found  by  the 
jury,  that  the  prisoner  took  an  upmarried  girl  out  of  the  posse- 
sion and  against  the  will  of  her  father,  and  that  the  girl  was  in 
fact  under  the  age  of  sixteen,  but  that  the  ])risoner,  fjona  Jiilu^ 
and  on  reasonable  grounds,  believed  that  she  was  above  sixteen, 
viz.,  eighteen  years  old.  No  tpiestion  arises  as  to  what  consti- 
tutes a  taking  out  of  the  possession  of  her  father,  nor  as  to  what 
circumstances  might  justify  such  taking  as  not  being  unlawful, 
nor  as  to  how  far  an  honest  thougli  mistaken  belief  tluit  such 
circumstances  as  would  justify  the  taking  existed,  miglit  forni 
an  excuse^  for,  as  the  case  is  reserved,  we  must  take  it  as  proved, 
that  the  girl  M'as  in  the  possession  of  her  father,  and  that  he 


age. 


i'iL. 


REG.  t).  PRINCE. 


IT 


f*i 


took  licr,  knowing  that  he  trespassed  on  the  father's  rights,  and 
liad  no  color  of  excuse  for  bo  iluing. 

The  'question,  therefore,  is  reduced  to  this,  wliether  the  words 
in  24-  and  25  Vict.,  ch.  100,  sec.  55,  tliiit  whosoever  shall  take  "  any 
unmarried  girl,  heing  under  the  age  of  sixteen,  out  of  the  pos- 
session of  her  father,"  are  tu  he  read  as  if  they  were,  "heing  un- 
der the  age  of  sixteen,  and  ho  knowing  that  she  was  under  that 
age."  Xo  such  wonls  are  contained  in  the  statute,  nor  is  there 
the  word  "maliciously,"  "knowingly,"  or  any  other  word  used 
tjiat  can  he  said  to  involve  a  similar  meaning. 

Tlie  argument  in  favor  of  the  prisoner  must  therefore  entirely 
proceed  on  the  ground  that,  in  general,  a  guilty  mind  is  an 
essential  ingredient  in  a  crime,  and  that  where  a  statute  creates 
a  crime,  the  intention  of  the  legislature  should  he  ]n'esumcd  to 
he  to  include  "knowingly"  in  the  definition  of  the  crime,  and 
the  statute  should  ho  read  as  if  that  word  were  inserted,  unless 
the  contrary  intention  appears.  We  need  not  incpiire  at  present 
whether  the  canon  of  construction  goes  cpiite  so  far  as  ahove 
stated,  for  we  are  of  opinion  that  the  intention  of  the  legislature 
snfHi'iently  appears  to  have  heen  to  punish  the  ahduction,  unless 
the  girl,  in  fact,  was  of  such  an  age  as  to  make  her  consent  an 
excuse,  irrespective  of  whether  he  knew  her  to  bo  t(X>  young  to 
ifive  an  ellectual  consent,  and  to  iix  that  a^e  at  sixteen.  The 
section  in  (piestion  is  one  of  a  series  of  enactments,  beginning 
witli  sec.  4S  and  ending  with  sec.  55,  forming  a  code  for  the  pro- 
tection of  women  and  the  guardians  of  young  women.  These 
eiiactments  are  taken,  with  scarcely  any  alteration,  from  the  re- 
]iealed  statute,  9  Geo.  IV,  ch.  Ml,  which  had  collected  them  into 
a  code  from  a  variety  of  old  statutes,  all  rei)ealed  by  it. 

Sec.  .5<»  enacts,  that  whosoever  shall  "  uidawfully  and  carnally 
know  and  abuse  any  girl  under  the  age  of  ten  years"  .shall  be 
guilty  of  felony.  Sec.  51,  whoever  shall  "  uidawfully  and  car- 
nally know  and  abuse  any  girl  being  above  the  age  of  ten  years 
and  under  the  age  of  twelve  years  "  shall  be  guilty  of  a  misde- 
meanor. 

It  seems  impossible  to  suppose  that  the  intention  of  the  legis- 
lature in  those  two  sections  could  have  been  to  make  the  crime 
depend  nj)on  the  knowledge  of  the  prisoner  of  the  girl's  actual 
age.  It  would  produce  the  monstrous  result  that  a  man  who 
had  carnal  connection  with  a  girl,  in  reality  not  (piite  ten  years 
Vol.  I.  — 2 


'^ 


18 


AMERICAN  CRIMINAL  REPORTS, 


I    ';H 


l{ 


old,  Init  whom  lie  on  reasonable  grounds  believed  to  be  a  little 
more  tlian  ten,  was  to  escape  altogether.  He  could  not,  in  that 
view  of  the  statute,  be  convicted  of  the  felony,  for  he  did  not 
know  her  to  be  under  ten.  lie  could  not  be  convicted  of  the 
misdemeanor,  because  she  was  in  fact  not  above  the  age  of  ten. 
It  seems  to  us  tliat  the  intention  of  the  legislature  was  to]»unisli 
those  who  liad  connection  with  young  girls,  thougli  witli  their 
consent,  uidess  the  girl  was  in  fact  old  enough  to  give  a  valid 
consent.  The  man  who  has  connection  with  a  child,  relying  on 
her  consent,  does  it  at  his  peril,  if  she  is  below  the  statutable  age. 
The  55th  section,  on  which  the  present  case  arises,  nses  pre- 
cisely the  same  words  as  those  in  sections  50  and  51,  and  must 
be  construed  in  the  same  way,  and,  if  we  refer  to  the  rej)ealed 
statute  4  and  5  Phil,  and  IMary,  ch.  8,  from  the  3d  section  of 
which  the  words  in  the  section  in  question  are  taken,  with  very 
little  alteration,  it  strengthens  the  inference  that  such  was  the 
intention  of  the  legislature. 

The  preamble  states,  as  the  mischief  aimed  at,  that  female 
children,  heiresses,  and  others  having  expectations,  were,  un- 
awares of  their  friends,  brought  to  contract  marriages  of  dis- 
paragement, "  to  the  great  heaviness  of  their  friends,''  aiul  then 
to  remedy  this,  enacts  by  the  1st  section,  that  it  shall  iiot  bo 
lawful  for  anyone  to  take  an  unmarried  girl,  being  under  six- 
teen, out  of  the  custody  of  the  father,  or  the  person  to  wliom  he, 
either  by  will  or  by  act  in  his  lifetime,  gives  the  custody,  unless 
it  be  Innajide  done  by  or  for  the  master  or  mistress  of  such 
child,  or  the  guardian  in  chivalry,  or  in  socage  of  such  child. 
Tills  recognizes  a  legal  right  to  the  possession  of  the  child,  de- 
pending on  the  real  age  of  the  child,  and  not  what  ap])ears. 
And  the  object  of  the  legislature  being,  as  it  appeal's  by  the  i)re- 
ainble  it  was,  to  protect  this  legal  right  to  the  possossiuii.  would 
be  l)affled,  if  it  was  an  excuse  that  the  person  guilty  of  thy  tak- 
ing thouglit  the  child  above  sixteen.  The  words  "unlawfully 
take,'*  as  used  in  the  3d  section  of  4  and  5  I'hil.  and  jSIary, 
ch.  8,  means  without  the  authority  of  the  master  or  mistress,  or 
!i,  mentioned  in  the  imi 


guar 


lately  preceding  sect 


ion. 


in 


There  is  not  much  authority  on  the  subject,  but  it  is  all 
favor  of  this  view.    In  litfj.  v.  Rohbu,  1  C.  &  K.,  -ioO,  Atcherly, 


Sorgt.,  then  acting  as  ju  ^gc  of  assizes,  so  ruled,   a 


,   ap])aren 


tiy 


(though  the  report  leaves  it  a  little  ambiguous),  with  the  ap- 


i 


th 

f..r 

or 

thei 

law 

se( 

stati 

out, 

rie( 

ag.'i 

wit 

thoi 

ant 

to   II 

ear} 
der, 


ingj 


RE(}.  V.  PRINCE.  If 

proval  of  Tiiulal,  C.  J.  In  lieg.  v.  Olifier,  10  Cox  Cr.  C,  402, 
Briinnvell,  ]3.,  so  ruled  at  the  Old  Bailey,  apparently  arriving  at 
tlie  conclusion  independently  of  liaj.  v.  liohins,  1  C.  k  K.,45G. 
In  Jl('<f.  V.  Jfi/coc7i',  12  Cox  Cr.  C,  28,  AVille*?,  J.,  witli<jnt  having 
tiie  case  of  A\(/.  v.  ONjitr,  10  Cox  Cr.  C,  402,  brought  to  his 
notice,  acted  on  the  case  of  lieij.  v.  liohlns,  1  C.  k.  K.,  450, 
saying  that  a  person  who  took  a  young  woman  from  the  custody 
of  her  father  must  take  the  conseipiences  if  she  proved  under 
age.  And  Quain,  J.,  followed  this  decision  in  lieg.  v.  liooth, 
12  Cox  Cr.  C,  231. 

We  thiidc  those  rulings  were  right,  and,  consequently,  that  the 
conviction  in  the  present  case  should  stand. 

The  following  judgment  (in  which  Kelly,  C.  B.,  Cleashy,  Pol- 
lock, and  Amphlett,  IM).,  and  Grove,  Quain  and  Deninan,  JJ., 
concurred)  was  delivered  by 

Bkamwkij,,  B.  The  question  in  this  case  depends  on  the  con- 
struction of  the  statute  under  which  the  prisoner  is  indicted. 
That  enacts  that  "whoever  shall  unlawfully  take  any  unmarried 
girl  uiuler  the  age  of  sixteen  out  of  the  possession  and  against 
the  will  of  her  father,  or  mother,  or  any  other  person  having  the 
lawful  care  or  charge  of  her,  shall  be  i^uiltv  of  n  misdemeanor." 
Isou'the  word  "unlawfully"  means  "not  lawfully,"  "otherwise 
than  lawfully,"  "without  lawful  cause,"  such  as  would  exist, 
for  instance,  on  a  taking  by  a  ])olice  (tilicer  on  a  charge  of  felony 
or  a  taking  by  a  father  of  his  child  from  his  scluxd.  The  statute 
therefore,  may  be  read  thus;  "AV'hoevcr  shall  take,  etc.,  without 
lawful  cjiuse."  Xow  the  prisoner  had  no  such  cause,  and,  con- 
sequently, excejit  in  so  far  as  it  hel])s  the  construction  of  the 
statute,  the  word  "  unlawfullv  "  mav  in  the  present  case  be  left 
out,  and  then  the  cpiestion  is,  has  the  prisoner  taken  an  immar- 
ried  girl  under  the  age  of  sixteen,  out  of  the  possession  of  and 
against  the  will  of  her  father?  In  fact,  he  has;  but  it  is  said,  not 
within  the  meaning  of  the  statute,  and  that  that  must  ])e  read  as 
tlK»ugh  tlie  word  "  knowingly,"  or  some  ecpiivalent  word  was  in, 
and  the  reason  given  is,  that  as  a  rule  the  iacHf<  red  is  necessary 
to  make  any  act  a  crime  or  c»flense,  and  that  if  the  facts  neces- 
sary to  constitute  an  oti'ense  are  not  known  to  the  alleged  otl'en- 
der,  there  can  be  no  ineiia  red.  I  have  used  the  word  "  know- 
ingly," but  it  will,  perhaps,  be  said  that  here  the  prisoner  not 


\. 


20 


AMERICAX  CRIMINAL  REPORTS. 


only  did  not  do  tlie  act  knowingly,  but  knew,  as  lie  wonld  have 
said,  or  believed,  that  the  fact  was  otherwise  than  such  as  would 
have  made  his  act  a  crime;  that  here  the  prisoner  did  not  say 
to  himself,  "  I  do  not  know  how  the  fact  is,  whether  she  is  under 
sixteen  or  not,  and  will  take  the  chance,"  but  acted  on  the 
reasonable  belief  that  she  was  over  sixteen,  and  that  though  if  ho 
had  done  what  he  did,  knowing  or  believing  neither  way,  but 
hazarding  it,  there  would  be  a  vicns  rea,'  there  is  not  one  when 
as  he  believes,  he  knows  that  she  is  over  sixteen. 

It  is  impossible  to  suppose  that,  to  bring  the  case  within  the 
statute,  a  person  taking  a  girl  out  of  her  father's  possession 
against  his  will  is  guilty  of  no  offense  unless  he,  the  taker, 
knows  she  is  under  sixteen;  that  he  would  not  be  guilty  if  the 
jury  were  of  opinion  he  knew  neither  one  way  nor  the  other. 
Let  it  be,  then,  that  the  question  is,  whether  '     's  guilty  where 
he  knows,  as  he  thinks,  that  she  is  over  sixteen.    This  intro- 
duces the  necessity  for  reading  the  statute  with  some  strange 
words  introduced;  as  thus:     "Whosoever  shall  take  any  un- 
married girl,  being  under  the  age  of  sixteen,  and  not  believing 
her  to  be  over  the  age  of  sixteen,  out  of  the  possession,"  etc. 
Those  words  are  not  there,  and  the  question  is,  whether  we 
are  bound  to  construe  the  statute  as  though  they  were,  on  ac- 
count of  the  rule  that  the  iacm  rea  is  necessary  to  make  an  act 
a  crime.     I  am  of  opinion  that  we  are  not,  nor  as  thou"-!!  the 
word  "knowingly"  was  there,  and  for  ti   •  following  reunons: 
The  act  forbidden  is  wrong  in  itself  if  without  lawful  cause;  I 
do  not  say  illegal,  but  wrong,     I  have  not  lost  sight  of  this,  tliat 
though  the  statute  probably  ])riucii)ally  aims  at  seduction  for 
carnal  purposes,  the  taking  may  be  by  a  female  with  a  good  mo- 
tive.    jS'evcrtheless,  though  there  may  bo  such  cases  whicli  are 
not  immoral  in  one  sense,  I  say  that  the  act  forbidden  is  wrong. 
Let  us  remember  what  is  the  case  supposed  by  the  stnMito. 
It  supposes  that  there  is  a  ffid  —  it  does  not  say  a  woman,  but  a 
girl  — something  between  a  child  and  a  woman;  it  sujiposes  s^he 
is  in  the  possession  of  her  father  or  mother,  or  other  jierson  hav- 
ing  lawful  care  or  chanje  of  her;  and  it  sup])oses  there  is  a  iah- 
iiuj,  and  that  that  taking  is  (ujahist  the  will  of  the  person  in 
whose  possession  she  is.    It  is,  then,  a  tal-ing  of  a  girl,  in  the 
possessioti  of  some  one,  against  his  will.    I  say  that  "done  with- 
out  lawful  cause  is  wrong,  and  that  the  legislature  meant  it 


by  a 
make 
the  ai 
twehl 
Can  il 
clainJ 
girl  \l 
comij 
and 


W 


REG.  v.  PRINCE. 


21 


&lioukl  be  at  the  risk  of  the  taker  whether  or  no  she  was  under 
sixteen.  I  do  not  say  tliat  taking  a  woman  of  fifty  from  her 
1)rotlier's,  or  even  father's  Ijonse,  is  wrong.  She  is  at  an  age 
wlien  she  luis  a  right  to  choose  for  lierself ;  she  is  not  a  gu'l,  nor 
of  sucli  tender  age  that  she  can  he  said  to  be  in  the  possession  of 
or  under  the  cdre  of  c/noye  of  any  une.  I  am  asked  wliere  I 
(h'aw  the  line;  I  answer,  at  when  the  female  is  no  longer  a  girl 
in  any  one's  possession. 

]>ut  wliat  the  statute  contemplates,  and  what  I  say  is  wrong, 
is  the  taking  of  a  female  of  such  tender  years  that  she  is  prop- 
erly called  a  (/id,  can  be  said  to  be  in  another's  possession  and 
in  that  other's  care  or  charge.  Xo  argument  is  necessary  to 
prove  this;  it  is  enough  to  state  the  case.  The  legislature  has 
enacted  that  if  any  one  does  this  wrong  act,  he  does  it  at  the 
risk  of  her  turning  out  to  be  under  sixteen.  This  opinion  gives 
full  scope  to  the  doctrine  of  the  )aens  red.  If  the  taker  believed 
he  had  the  father's  consent,  though  wrongly,  he  would  have  no 
■iiU'/is  rcii/  so  if  he  did  not  know  she  was  in  anyone's  possession, 
nor  in  the  care  or  charge  of  anyone.  In  those  cases  he  would 
not  know  he  was  doing  the  act  forbidden  by  the  statute,  an  act 
which,  if  he  knew  she  was  in  possession  and  in  care  or  charge  of 
anyone,  he  would  know  was  a  crime  or  not,  according  as  she  was 
under  sixteen  or  not.  lie  would  not  know  he  was  doing  an  act 
wrong  in  itself,  whatever  was  his  intention,  if  done  witl.iout  law- 
ful cause. 

In  addition  to  these  ''onsiderations,  one  may  add  that  the 
statute  doiis  use  the  word  "  unlawfully,"  and  does  not  use  the 
words  "  knowingly  "  or  "  not  believing  to  the  contrary."  If  the 
question  was,  whether  his  act  was  unlawful,  there  would  be  no 
ditliculty,  as  it  clearly  was  not  lawfid. 

This  view  of  the  section,  to  my  mind,  is  much  strengthened 
by  a  reference  to  other  sections  of  the  came  statute.  Sec.  50 
nuikes  it  a  felony  to  unlawfully  and  carnally  know  a  girl  under 
the  age  of  ten.  Sec.  51  enacts,  when  she  is  above  ten  and  under 
twelve  to  unlawfully  and  carnally  know  her  is  a  misdemeanor. 
Can  it  be  supposed  that  in  a  former  case  a  person  indicted  might 
claim  to  be  acquitted  on  the  ground  that  he  had  believed  the 
girl  was  over  ten  thougJi  under  twelve,  and  so  that  he  had  only 
committed  a  misdcmaneor;  or  that  he  believed  her  over  twelve, 
and  so  had  committed  no  ofl'euse  at  all ;  or  that  in  a  case  under 


00 


AMERICAN  CRIMINAL  REPORTS. 


sec.  51  he  could  claim  to  be  acquitted  because  he  believed  licr 
over  twelve.  In  both  cases  the  act  is  intrinsically  wrong;  for 
the  statute  says  if  "unlawfully"  done,  the  act  done  with  a 
mens  rea  is  unlawfully  and  carnally  knowing  the  girl,  and  the 
man  doing  that  act  does  it  at  the  risk  of  the  child  being  under 
the  statutory  age.  It  would  be  mischievous  to  hold  otherwise. 
So  sec.  50,  by  which,  whoever  shall  take  away  any  child  under 
fourteen  with  intent  to  deprive  parent  or  guardian  of  the  ])0S- 
session  of  the  child,  or  with  intent  to  steal  any  article  upon  sucli 
child,  shall  be  guilty  of  felony.  Could  a  prisoner  say,  '"  I  di^l 
take  away  the  child  to  steal  its  clothes,  but  I  believed  it  to  bo 
over  fourteen?"  If  not,  then  neither  could  he  say,  "  I  did  tiiko 
the  child  with  intent  to  deprive  the  parent  of  its  possession,  ])ut 
I  believed  it  over  fourteen."  Because  if  words  to  that  ell'eet 
cannot  be  introduced  into  the  statute  where  the  intent  is  to  steiil 
the  clothes,  neither  can  they  where  the  intent  is  to  take  the  child 
out  of  the  possession  of  the  parent.  But  if  those  words  cannot 
be  introduced  in  sec.  50,  why  can  they  be  in  sec.  55? 

The  same  principles  .apply  in  other  cases.  A  man  was  held 
liable  for  assaulting  a  police  officer  in  the  execution  of  his  duty, 
though  he  did  not  know  he  was  a  police  officer  (10  Cox  (!r.  C, 
302).  AVIiy?  Because  the  ac^ was  wrong  in  itself.  So,  also,  iu 
the  case  of  burglary,  could  a  person  charged  claim  an  ac(piittal 
on  the  ground  that  he  believed  it  was  past  six  when  he  entered; 
or  in  housebreaking,  that  he  did  not  know  the  place  broken  into 
was  a  house?  Take,  also,  the  case  of  libel,  piildished  when  tlio 
publisher  thought  the  occasion  privileged;  or  that  he  had  a  de- 
i"  I  .-  under  Lord  Campbell's  act,  but  was  wrong;  he  could  n(jt 
be  riT'  !f^d  to  be  ac(piitted  because  there  was  no  mens  rea. 
Vili  V .  L!joaase  the  act  of  publishing  written  defamation  is 
^■,-ro;  i  V  .ore  there  is  no  lawful  cause. 

As  to  the  case  of  the  marine  stores,  it  was  lield  properly  that 
there  was  no  tmns  rea,  where  the  person  charged  with  the  jios- 
session  of  naval  stores,  with  the  Jidniiralty  mark,  did  not  know 
the  stores  he  had  bore  the  mark;  lie<j.  v.  iSleej),  8  Cox  Cr.  C, 
472,  because  there  is  nothing  jyrlma  facie  wrong  or  immoral  iu 
having  naval  stores  unless  they  are  so  marked.  Bntsu])posu  his 
servant  had  told  him  that  there  was  a  mark,  and  he  had  said  ho 
would  chance  whether  or  not  it  was  the  adni'«':il<^v  mnrl.-^ 


ilty 


So 


m 


the  case  of  the  carrier  with  game  iu  his  possession ;  unless  ho 


ing 
whi 


REG.  f.  PRINCE. 


23 


knew  he  had  it,  tliere  woukl  be  nothing  done  or  permitted  by 
him,  no  intentional  act  or  omission.  So  of  the  vitriol  senders; 
there  was  nothing  wrong  in  sending  such  packages  as  were  sent 
unless  they  contained  vitriol. 

Further,  there  have  been  four  decisions  on  this  statute,  in  fa- 
vor of  the  construction  I  contend  for.  I  say  it  is  a  (juestion  of 
construction  of  this  particular  statute  in  doubt,  bringing  thereto 
the  common  law  doctrine  of  mens  rea  being  a  necess<iiry  ingredi- 
ent of  crime.  It  seems  to  me  impossible  to  say  that  where 
a  person  takes  a  girl  out  of  her  father's  possession,  not  knowing 
whether  she  is  or  is  not  under  sixteen,  that  he  is  not  guilty;  and 
Cfpially  impossible  when  he  believes,  ])ut  erroneously,  tl'.at  she  is 
old  enough,  for  him  to  do  a  wrong  act  with  safety.  I  think  the 
conviction  should  be  affirmed. 

/ 
Den'MAX,  J.  I  agree  in  the  judgment  of  my  brothers  Erom- 
woll  and  Jllackburn,  and  I  wish  what  I  add  to  be  understood  as 
sui)plementury  to  them.  The  defendant  was  indicted  under  the 
21th  and  25tli  Vict.,  ch.  100,  sec.  55,  which  enacts  that  "  whosoever 
f^liall  uitJdwfulf ij  take,  or  cause  to  be  taken,  any  unmarried  girl, 
being  under  the  age  of  sixteen  years,  out  of  the  possession  and 
against  the  wish  of  her  father  or  mother,  or  of  any  other  person 
hdviiKj  thr  lairfal  care  or  chanjt  of  her,  shall  be  gnilty  of  a  mis- 
deini'anor."' 

J  cannot  hold  that  the  word  "  unlawfully  "  is  an  immaterial 
word  in  an  indictment  framed  n])on  this  clause.  I  think  that  it 
must  be  taken  to  have  a  meaning,  and  an  important  nuianing, 
and  to  be  cajiable  of  beiiig  either  supported  or  negatived  by  evi- 
dence upon  the  trial.  See  Ii<(j.  v.  Turner,  2  ^loo.  Cr.  C,  il; 
/iV/.  r.  Riian,  2  Hawk.  V.  C,  ch.  25,  j^OO. 

In  the  present  case  the  jury  found  that  the  defendant  had  done 
everything  re(juired  to  bring  himself  within  the  clause  as  a  mis- 
demeanor, unless  the  fact  that  he  bona  jide  and  reasonably  be- 
lieved the  j^irl  taken  by  him  to  be  eighteen  vears  old  constituted 
a  defense.  That  is,  in  other  words,  unless  such  Itond  Jide  and 
reasonable  belief  prevented  them  from  saying  that  the  defend- 
ant, in  what  he  did,  acted  "unlawfully,"  within  the  meaning  of 
the  clause.  The  cpiestion,  therefore,  is,  whether,  upon  this  find- 
ing of  the  jury,  the  defendant  did  unlawfully  do  the  things 
which  they  found  him  to  have  done. 


1 


21 


AMERICAN  CRIMINAL  RETORTS. 


The  solntion  of  tin's  question  depends  upon  the  mcanin.!?  of 
tlie  word  "unlawfully,"  in  sec.  55.     If  it  means  '"witli  i\  knowl- 
edge and  belief  that  every  single  thinf,'  mentioned  in  the  section 
existed  at  the  moment  of  the  taking,''  undoubtedly  the  defend- 
ant would  be  entitled  to  an  acquittal,  because  he  did  not  believe 
that  a  girl  of  under  sixteen  was  being  taken  by  him  at  all.     If  it 
oidy  means  "  without  lawful  excuse  "  or  justification,  then  ii  fur- 
ther question  arises,  viz.:    whether  the  defendant  had  any  hiwful 
excuse  or  justification  for  d(nng  all  the  acts  mentioned  in  the 
clause  as  constituting  the  oit'ense, by  reason,  merely,  thuthclona 
fide  and  reasonal)ly  believed  the  girl  to  be  older  than  the  age 
limited  by  the  clause.     Bearing  in  mind  the  ju-evious  enactments 
relating  to  abduction  of  girls  under  sixteen,  4  and  5  Phil.  <k, 
Mary,  ch.  S,  sec.  2,  and  the  general  course  of  the  decisions  u]x»u 
these  enactments,  and  upon  the  present  statute,  and  louking  at 
the  mischief  intended  to  be  guarded  against,  it  api)ears  to  mo 
reasonably  clear  that  the  word  "  uidawfully,"  in  the  true  sense  in 
which  it  was  used,  is  fully  satisfied,  by  holding  that  it  is  equiv- 
alent to  the  word  "  without  lawful  excuse,"  using  those  words  as 
equivalent  to  "  without  such  a!i  excuse  as,  being  i)rove(l,  would 
be  a  complete  legal  justification  for  the  act,  even  when  all  the 
facts  constituting  the  oft'ense  exist." 

Cases  may  easily  be  suggested  where  such  a  defense  might  be 
made  out,  as,  for  instance,  if  it  were  proved  that  he  had  the  au- 
thority of  a  court  of  competent  jurisdiction,  or  of  some  legal 
warrant,  or  that  he  acted  to  prevent  some  illegal  violence  not 
justified  by  the  relation  of  parent  and  child,  or  schotd  mistress, 
or  other  custodian,  and  requiring  forcible  interference  bv  wav  of 
protection. 

In  the  present  case  the  jury  found  that  the  defendant  believed 
the  girl  to  be  eighteen  years  of  age;  even  if  she  had  been  of  that 
age,  she  would  have  been  in  the  lawfid  care  and  charge  of  her 
father  as  her  guardian  by  nature.  Sec  Co.  Litt.  88,  b.  ii.  12, 
19th  ed.,  recognized  in  lieg.  v.  Howes.  3  E.  vfe  E.,  332.  Her 
father  had  a  right  to  her  personal  custody  up  to  the  age  of  twenty- 
one,  and  to  appoint  a  guardian  by  deed  or  will,  whose  ri<rht  to 
her  personal  custody  would  have  extended  up  to  the  same  age. 
The  belief  that  she  was  eighteen  would  be  no  justification  to  the 
defendant  for  taking  her  out  of  his  possession,  and  against  his 
will.    By  taking  her,  even  with  her  own  consent,  he  must  at 


the 
havi 

oft 
on  0 
com 
unla 


OSBORN  V.  THE  STATE. 


25 


i 


lca8t  liave  been  guilty  of  aiding  and  abetting  lier  in  doing  an 
unlawful  act,  viz.:  in  escaping,  against  tlie  will  of  her  natural 
guardian,  from  his  lawful  care  and  charge.  This,  in  my  opinion, 
leaves  him  wliolly  without  lawful  excuse  or  justification  for  the 
act  lie  <lid,  even  though  he  believed  that  the  girl  was  eighteen, 
and  tiierefore  unable  to  allege  that  what  he  has  done  was  not  un- 
lawfully done  within  tJie  meaning  of  the  clause.  In  other  words, 
having  knowingly  done  a  wrongful  act,  viz.'.  in  taking  the  girl 
away  from  the  lawful  possession  of  her  father,  against  his  will, 
and  in  violation  of  his  rights  as  guardian  by  nature,  ho  cannot 
be  heard  tt)  say  that  he  thought  the  girl  was  of  age  beyond  that 
limited  bv  the  statutes  for  the  t)irense  charge<l  against  him.  lie 
had  wrongftdly  done  the  very  thing  ct)ntemplated  by  the  legisla- 
ture; he  had  wrongfully  and  knowingly  violated  the  father's 
right,  against  the  father's  will,  and  he  cannot  set  up  a  legal  de- 
fense by  merely  proving  that  he  thought  he  was  committing  a 
diU'erent  kind  of  wrong  from  that  which  in  fact  he  was  com- 
mitting. 

Conviction  a^lrmcd. 


OsBouN  vs.  TuK  State. 

(.V2  hul.,  WG.) 

Auduction  for  ruosTiTUTioN:    ri-ostitiition  —  Illicit  intercourse. 


The  indictinont  cluu-Kt'il  the  iilKluction  of  "a  fi'iniilo,  oto.,  for  the  iniqioso  of 
liaviiif,'  illicit  scxuiil  iiit<'n'Oiirs('  with  ln'r."  Tho  statuti'  is  iiyaiiist  abduc- 
tion "  for  tho  piirposo  of  jn'ostitiition."  Ifi'hJ,  that  tlio  imlictiucut  chargftl 
IK)  ofVenso  uniU'r  lln^  statute,  and  should  liavu  buen  quaslu'd.  Prostitution 
moans  conuuon,  indiscriuiinatt',  illicit  intercourse,  and  not  illicit  intercourse 
^\^th  one  man  only. 

"WounEX,  J.  The  appellant  was  tried,  convicted,  and  sent  to 
the  state  prison  uiK)n  the  following  indictment,  its  sufficiency 
having  been  ]n'operly  questioned,  viz.: 

"The  grand  jurors,"  etc.,  "  in  the  name  and  by  the  authority 
of  tiie  state  of  Indiana,  upon  their  oaths  present  and  charge  that 
on  or  about  the  15th  day  of  January,  A.  D.  1875,  at  and  in  the 
county  of  Franklin,  and  state  of  Indiana,  one  James  T.  Osborn 
unlawfully  and  feloniously  enticed  away  one  Alvaretus  Faurote, 


20 


AMERICAN     KIMINAL  RErORTS. 


a  female  of  previously  cliiiste  chariicter,  from  said  county  of 
Frauldiii,  iu  the  state  of  Indiana,  to  the  eity  of  Jetler-sonvillo,  in 
the  county  of  (Jiarlce,  iu  said  state  of  Indiana,  for  the  purpose  of 
having  illicit  sexual  intercourse  with  her,  the  said  Alvaretus 
Faurote,  cojitrary  to  the  form  of  the  statute,"  etc. 

The  indictment  is  based  upon  the  following  statutory  provis- 
ion, viz. : 

"If  any  person  shall  entice  or  take  away  any  female  of  previ- 
ous chaste  character,  frona  wherever  she  may  he',  to  a  house  of 
ill  fame,  or  elsewhere,  for  the  purpose  of  prostitution,  and  every 
person  who  shall  advise  or  assist  in  such  abduction,  shall  be  im- 
prisoned in  the  state  ])rison  not  less  than  two  nor  more  than  five 
years,  or  may  be  imprisoned  in  the  county  jail,  not  ex(!eeding 
one  year,  and  be  fined  not  exceeding  five  hundred  dollars;  but  in 
such  case  the  testimony  of  such  female  shall  not  be  sullicient,  un- 
less supjiorted  by  other  evidence,  corroborating  to  the  sanxe  ex- 
tent as  is  rerpiired  in  cases  of  ])erjury,  as  to  the  principal  witness." 
2  G.  6c  II.,  441,  sec.  10. 

It  will  be  seen  by  the  indictmeut  that  the  appellant  is  charged 
with  having  abducted  the  female  "  for  the  purpose  (»f  having 
illicit  sexual  intercourse  with  her;"  and  not  "for  the  ])urpose  of 
prostitution,"  as  is  })rovided  for  by  the  statute.  The  (piestion 
arises,  whether  the  facts  charged  come  within  the  statute.  AVe 
are  of  opinion,  upon  an  examination  of  the  authorities,  that  they 
do  not. 

The  first  case  to  which  our  attention  has  been  called  is  that  of 
CommonwenUh  v.  Cook,  12  ^Met.,  03.  There  Cook  was  indicted 
under  a  statute  quite  similar  to  our  own.  The  court  say,  in 
speaking  of  the  point  here  involved  (p.  OS):  "The  court  are  of 
opinion,  that  the  offense  made  punishable  by  this  statute  is  some- 
thing beyond  that  of  merely  jiroeuring  a  female  to  leave  her 
father's  house  for  the  sole  purpose  of  illicit  sexual  intercourse 
with  the  individual  thus  soliciting  her  to  accompany  him;  that 
she  must  be  enticed  away  with  the  view,  and  f<n-  the  puri)ose,  of 
placing  iier  in  a  house  of  ill  fame,  place  of  assignation,  or  else- 
where, to  become  a  prostitute,  in  the  more  full  and  exact  sense 
of  that  term;  that  she  must  be  placed  there  f(U' common  and  in- 
discriminate sexual  intercourse  with  men ;  or  at  least,  that  she 
must  be  enticed  away  for  the  purpose  of  sexual  intercourse  by 
others  than  the  party  who  thus  entices  her;  and  that  a  mere  en- 


OSnORN  r.  THE  STATE. 


27 


ticint;  iiwivy  of  a  fciimle  for  a  personal  sexual  liitercourso  will 
not  8ul)je(!t  the  oilentler  to  tlio  ])onalties  of  this  statute." 

Tlie  next  ease  is  that  of  Viti'pentti'  v.  The  Peojtle,  8  Barb., 
003.  In  that  ease,  Carpenter  was  ])rosecute(l  under  a  similar 
statute,  and  the  court  eanie  to  the  same  eijiiclusion  as  that  arrived 
at  in  Massaeiiusetts,  though  the  Massaehnsetts  case  is  not  therein 
mentioned.  The  court  say  (p.  (511):  "  We  are  entirely  clear  that 
hy  the  expression  in  cpiestion"  (prostitution),  "  as  used  in  the 
statute,  it  was  intended  that  iti  order  to  constitute  the  otlense 
tlierehy  created,  the  ahduction  of  the  female  must  he  for  the 
]»nri)ose  of  her  indiscriminate,  meretriciijus  commerce  with  men. 
That  such  must  he  the  case  to  make  her  a  prostitute,  or  her  con- 
duct prostitution,  within  the  act." 

Followiiiij  these  cases  is  that  of  the  State  v.  liiiJd,  8  Iowa, 
447.  Tlie  latter  was  also  a  ])rosecution  under  a  similar  statute, 
for  enticinif  away  a  female  for  the  purpose  of  prostitution.  There 
was  evidence  of  a  purpose  on  the  ])art  of  the  defendant  "  to  seduce 
and  enjoy  the  body  of  the  said  Matilda"  (the  female),  "and  that 
he  had  taken  her  away,  in  order  to  have  carnal  intercourse  with 
her,  and  did  so  enjoy  her  person;  but  there  was  no  testimony 
that  he  purpitsed  that  she  should  be  carnally  enj(»yed  by  others, 
nor  that  slie  shoidd  be  devoted  to  promiscuous  carnal  intercourse, 
nor  that  he  took  her,  or  proposed  taking  her,  to  any  liouse  of 
prostitution."  On  these  facts  the  defendant  asked  the  following 
instruction,  which  was  refused,  viz.: 

'•  If  the  defeiulant  only  intended  to  obtain  the  body  of  the  said 
^latilda,  for  his  own  ])ersonal  carnal  enjoyment,  and  no  more, 
then  the  act  did  not  amount  to  her  prostitution,  in  the  sense  of 
the  law." 

U  was  held  that  the  charge  should  have  been  given,  that  the 
word  "prostitution"  means  common,  indiscriminate,  illicit  in- 
tercourse, and  not  sexual  intercourse  confined  exclusively  to  one 
man.  To  the  same  ett'ect  is  the  still  later  case  of  IState  v.  /Stoi/ell, 
64  Ale.,  24. 

In  view  of  these  authorities,  we  think  it  clear  that  the  indict- 
ment does  not  charge  the  abduction  of  the  feuude  "  for  the  pur- 
pose of  prostitution,"  within  the  meaning  of  the  statute.  The 
judgmer.t  below  is  reversed,  and  the  cause  remanded,  with  in- 
structions to  the  court  below  to  sustain  the  motion  to  quash  the 
indictment. 


I 


Mf^ 


1 


28  AMERICAN  CRIMINAL  REPOUTS. 

(    The  clerk"  will  give  the  proper  notice  for  the  return  of  tho 
prisoner. 


Lyons  vs.  State. 

(52  Intl.,  420.) 

Atiduction  fou  PnosTiTUTiON:    Cliaate  chamcter— Evidence. 

A  Ktatnto  ngiiinst  the  abduction  of  fonmles  of  "  {iroviouB  ohantc  charactur  " 
moans,  of  actual  personal  virtue  in  distinction  from  a  pood  n-pntation. 

On  the  trial  of  an  indictment  foundci  on  tiiat  statute,  it  is  admissildc  to  provo 
invvious  piuiicular  acta  of  illicit  intercourse  on  the  part  of  the  fenuilo 
abducted. 

DowNKY,  C.  J.  This  was  a  prosecution  for  alxluction,  under 
Bee.  10,  p.  441,  2  G-.  *fe  II.  Tho  defendant  was  convicted  and 
sentenced  to  the  state's  prison.  The  refusal  of  the  court  to 
quash  the  indictment,  and  the  overruling  of  the  defendant's  mo- 
tion for  a  new  trial,  are  assigned  as  errors.  "We  see  no  valid 
objection  to  the  indictment.  There  is  a  little  sur]»lusage  in  its 
allegations,  but  it  is  good,  notwithstanding. 

On  the  trial,  the  defendant  proposed  to  prove  acts  if  illicit 
sexual  intercourse  on  the  part  of  the  prosecuting  witness  ]trior 
to  the  alleged  abduction,  but  the  court  rejected  the  evidence. 
"We  think  this  was  an  error.  In  such  a  ease  the  fenude  must 
be  of  "previous  chaste  character."  This  has  been  held  to  mean 
thut  she  shall  possess  actual  personal  virtue  in  distinction  from 
a  good  reputation.  A  single  act  of  illicit  connectidu  may,  there- 
fore, be  shown  on  behalf  of  the  defendant.  I'ish.  Stat,  (.'rime.-?, 
sec.  G39;  Carpenter  v.  The  Peo2>h',  8  IJarb.,  COo;  Kiui/o/i  v. 
The  People,  2G  N.  Y.,  203;  The  State  v.  Shean,  32  Iowa,  88; 
Andre  v.  The  State,  5  id.,  389;  Boak  v.  The  State,  id.,  430. 

The  preceding  section  relating  to  seduction  is  ditl'erent.  It 
only  requires  that  the  female  shall  be  "  of  good  repute  for  chas- 
tity." 

The  authorities  cited  by  the  state  do  not  bear  on  the  exact 
question  under  consideration. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new 
trial.  The  clerk  will  certify  to  the  warden  of  the  state  prison  as 
required  by  law. 


i 


SLATTERY  v.  I'llOPLE. 


29 


SlATTKUY   V8.    Pko1'I-K. 

(70111.,  217.) 

Ahohtion :    Sitilittc  coiislmcd  —  Intent  —  Aihnissions  —  Kridinoc, 

Tlie  rcspondt'nt  wiw  conviik'cl  on  un  irulittinent  cliiiiviiiy  liiui  wtli  tV'loniousIy 
bi'iitintf  mill  Ntrikiiitf  a  iirfj^iiimt  woiiiiiu  witli  int«'iit  to  cmise  her  to  mis- 
Ciiny.  'i'lio  Htatuti'  iiiiilfr  wliii'li  tht-  indiitinont  wax  foiiiul  in  as  follown: 
"  Whoever,  liy  ineuiis  of  iiiiy  iiiHtruiiieiit,  medicine,  druj,',  or  otiier  meiuw 
whatever,  causes  any  woman  prejfiiant  with  child  to  abort  or  miscarry," 
etc.:  //(■/(/,  that  the  statute  only  ainjiios  to  those  who  intend  to  produce  an 
abortion. 

Silence  under  accusations  is  not  always  to  bo  considered  as  an  admission  of 
tht  ir  tnith. 

Where  the  resi)ondent  had  promised  to  Ijo  on  his  good  behavior  at  a  family  in- 
t4'rview,  to  wh'-^h  ne  had  intluced  a  frii'nd,  by  means  of  such  promise,  to  yo 
with  him,  it  was  livl<t  that  his  silence  at  that  interview  undi'r  harsh  accusa- 
tions should  not  be  construed  as  an  admission  of  their  truth. 

Tlie  evidence  in  this  case  held  insulhcient  to  justify  a  conviction. 

Rkkksk,  J.  Pliiintifi'  in  error  was  indicted,  at  the  June  term, 
1874,  of  the  JIancock  circuit  court,  for  felonio\i8ly,  unlawfully 
and  nialicio"  sly  boating,  8trikin<^,  kicking,  j»iiichint^  and  crush- 
ini;  one  (.Vdcstia  Slattery,  a  ])regnant  woman,  with  intent,  un- 
lawfully, feloniously  and  maliciously  to  cause  her  to  miscarry, 
uikI  by  means  whereof  she  did  miscarry. 

The  jury  found  the  defendant  guilty,  and  fixed  his  imprison- 
ment in  the  penitentiary  at  three  years.  A  motion  for  a  new 
trial  was  denied,  and  judgment  rendered  on  the  verdict.  The 
record  i.s  brought  here  by  writ  of  error,  and  various  errors  as- 
eigncd.     Those  which  are  deemed  imjMirtant  will  be  noticed. 

The  sectit)!!  of  the  statute  under  which  the  indictment  was 
found  is  as  follows:  "  Whoever,  by  means  of  any  instrument, 
medicine,  drug,  or  other  means  whatever,  causes  any  woman 
])regnant  with  child  to  abort  or  misca"ry,  or  attemi)ts  to  jirocnre 
an  abortion  or  miscarriage,  etc.,  shall  be  imprisoned  in  the  ])eni- 
tentiary  not  less  than  one  year  nor  more  than  two  years."  Hev. 
Stat.,  IS 74,  p.  852. 

This  statute  is  evidently  aimed  at  professional  abortionists, 
and  at  those  who,  with  the  intent  and  design  of  producing  abor- 
tion, shall  use  any  means  to  that  end,  no  matter  what  those 
means  may  be,  but  not  at  those  who,  with  no  such  purpose  iu 
view,  should,  by  a  violent  act,  unfortunately  produce  such  a  ro- 


30 


AMERICAN  CRIMINAL  REPORTS. 


suit.  Tlic  intent  to  produce  an  abortion  must  cxir^t  when  tlio 
means  are  used.  Tiiat  is  tlie  cluu'ge  in  the  indictment.  It  is 
there  cliarged  that  the  prisoner  did  feloniously  and  maliciously 
beat  this  pregnant  woman  A\itli  intent,  unlawfully,  feloniously, 
etc.,  to  cause  lier  to  miscarry. 

The  partj  alleged  to  have  been  so  trented  is  the  wife  of  the 
prisoner,  who,  by  his  own  confession,  had  not  treated  her  in  the 
kindest  manner,  but  there  is  not  a  particle  of  proof  in  the  record 
going  to  show  that  her  miscarriage  was  caused  by  any  violence 
lie  at  any  time  used  toward  her,  or  that  he  had  the  least  idea  such 
would  be  the  result,  or  that  he  desired  or  intended  such  a  result. 

A  felonious  and  malicious  intent  to  cause  a  miscarriage  being 
charged  in  the  indictment,  circumstances  sufhcient  to  satisfy  tho 
jury  of  the  intent  should  be  shown. 

A  criminal  offense  consists  in  a  violation  of  a  public  law,  in 
the  commission  of  which  there  must  be  a  union  or  joint  o}>eratioii 
of  act  and  intention,  or  criminal  negligence,  and  the  intention  is 
manifested  by  the  circumstances  connected  with  the  ])erpetration 
of  the  offense,  and  the  sound  mind  and  discretion  of  the  person 
accused. 

The  only  marks  upon  the  person  of  Mrs.  Slattery  were  a  dis- 
coloration about  a  linger's  length  of  one  thigh,  a  mark  on  ouv;  of 
her  arms,  and  a  slight  discoloration  at  one  spot  on  her  face,  but 
Low  these  were  produced  no  witness  testified.  It  was  in  j)roof 
she  was  abouL  ree  months  gone  in  pregnancy,  had  had  three  or 
four  miscarriages  previously,  and  but  a  short  time  before  this 
last  one,  she  had  ridden  some  miles  in  a  lumber  wagon,  to  adancin" 
party,  where  she  danced  all  night  and  into  the  morning,  and  rode 
home  in  the  same  conveyance. 

One  Taylor,  claiming  to  be  a  doctor,  gave  it  as  his  oi)iniou 
that  these  marks  appeared  to  have  been  made  three  or  four  davs 
previous  to  the  miscarriage,  and  in  his  opinion,  ])roiluce(l  it; 
whilst  Drs.  Thompson  and  Carlton  testify,  the  bruises,  as  de- 
scribed by  Taylor,  would  not  cause  miscarriage  to  a  healthy 
woman.  They  further  testify,  after  three  or  four  miscarriages, 
it  becomes  habitual,  and  the  chances  are  against  the  woman  car- 
rying the  child  the  full  time;  and  they  further  say  that,  with 
such  a  woii.an,  lifting  heavy  weights,  any  hard  work]  fast  walk- 
ing, riding  in  a  lumber  wagon,  dancing,  or  anything  of  that  kind, 
would  be  liable  to  induce  miscarriaire. 


been 
dee<l, 
])rison 
riinor 
ing  b( 
of  it 

^\\ 

with 
Th 
a  new 


SLA'rrERY  r.  PEOPLE. 


31 


There  is  no  question  that  tlic  great  preponderance  of  the  evi- 
dence sustains  tlic  position  taken  by  tlie  prisoner's  connsel,  that 
niiscarriaj^e  liad  become  liabitiial  with  her,  and  tlic  chances  were 
all  against  her  carrying  this  foitns  the  full  time. 

We  have  said  there  was  no  evidence  to  show  this  miscarriage 
of  the  prisoner's  wife  was  caused  by  any  act  of  violence  of  his 
toward  her.     The  weight  of  the  testimony  is  the  other  way. 

It  is  argned  by  the  counsel  for  the  per)ple,  it  sufficiently  ap- 
pears from  the  testimony  of  her  father,  Joseph  Larrimore. 

Neither  he  nor  Mrs.  Larrimore,  the  mother,  testify  to  any  act 
of  violence  of  their  own  knowledge,  but  claim  that  at  Larrimore's 
house,  where  Mrs.  Slattery  then  was,  after  her  miscarriage,  at  an 
interview  there  held  by  the  prisoner,  at  which  was  present  his 
wife,  iier  father  .and  mother,  a  ]\[r.  Bliss  and  a  ^[rs.  Davis,  the 
prisoner  admitted  many  acts  of  vi(dence  which  Larrimore  speci- 
fied, by  not  denying  the  accusations.  Xo  time  was  s])ecitied 
when  these  acts  were  done —  whether  years  before  or  quite  re- 
cently; and  the  prisoner  was  not  in  a  position  to  deny,  for  he  had 
promised  liliss,  if  he  would  go  with  him  and  be  j>resent  at  the 
interview,  he  would  keep  his  temper  —  would  be  on  his  good  be- 
havior. He  felt  i»ledged  to  make  no  denial  of  any  statement 
Larrimore  should  make,  but  to  keep  his  temper  under  strict  con- 
trol, an<l  let  his  father-in-law  say  what  he  pleased.  At  this 
interview  not  one  word  was  said  by  Mr.  or  Mrs,  Larrimore, 
or  by  ^[rs.  Slattery,  or  by  anybody  else,  that  her  miscarriage  had 
been  caused  by  the  prisoner's  violence  to  her.  It  is  strange,  in- 
deed, if  such  was  the  fact,  the  miscarriage  so  recent,  and  all  the 
])risoncr's  enormities  narrated  with  much  apparent  f/«.v^c^  by  Lar- 
rimore, that  he  should  not  have  charged  this  miscarriage  as  hav- 
ing been  produced  by  the  prisoner's  violence.  There  is  nothin'r 
of  it  in  the  ])roof. 

AVe  fail  to  find  in  this  record  anything  connecting  the  prisoner 
with  the  crime  charged,  as  it  is  defined  in  the  statute  book. 

The  judgment  will  be  reversed,  and  the  cause  remanded,  that 
a  new  trial  uuiy  be  had. 

Judgment  reversed. 


XoTK.  —  llic  followinjj  aro  a  fnvof  tho  most  important.  American  cases  which 
di'iil  witli  the  snliject  of  silence  iis  an  imi)lie<l  admission: 

Two  watchmen  took  K.  into  custody  and  canned  him  to  a  watdihousc;  and 
01)0  of  them  there  said  that  K.  had  been  robbuig  a  man;  li.  soon  came  in  and 


82 


AMERICAN  CRIMINAL  REPORTS. 


11 


pointe.1  to  K.  and  said:  "  That  man  has  stolen  my  monoy.'  ^V hde  one  of  the 
watchmen  wiis  proceeding  to  lock  up  K.,  B.  saw  K.  put  somcthu.g  on  the  she  J 
in  the  watchhouso,  and  13.  thereupon  took  from  the  shelf  a  bag  of  money,  luid 
R.  said  it  was  hi.  bag,  and  that  it  was  all  the  money  he  had;  K.  was  within  hear- 
in- of  aU  tliat  wiis  said  after  he  was  carried  to  the  watchhouse,  and  made  no 
reply  to  any  part  of  it:  UeU,  that  iii  the  trial  of  an  indictment  agamst  K.  for 
steahng  R.'s  bag  lUid  money  from  his  person,  the  declarations  ot  the  watchniau 
and  of  R.,  to  which  K.  made  no  reply,  were  not  competent  evidence  ot  K.  s  ad- 
mission either  of  the  fact  of  stealmg,  or  that  the  bag  and  money  were  the  prop- 
erty of  R.  ,  ,.  , 

The  opinion  of  the  court  was  delivered  by  Shaw,  C.  J.,  who  used  this  language : 

"The  circumstances  were  such  that  the  court  are  of  opinion  that  the  declara- 
tion of  the  party  robbed,  to  wiiich  the  defendimt  made  no  reply,  ought  not  to 
have  been  received  as  competent  evidence  of  liis  admission,  either  of  tlio  fact  of 
stealing,  or  that  the  bag  and  money  were  the  property  of  the  party  alleged  to  be 
robbed,  llie  declaration  made  by  the  otHcer,  who  first  brought  the  defendant  to 
the  watchlionse,  he  had  certainly  no  occasion  to  reply  to.  The  subsequent  state- 
ment, if  made  in  the  hearing  of  the  defendant  (of  which  we  think  there  was  evi- 
dence), was  made  whUe  he  was  under  arrest,  and  in  the  custody  of  persons  hav- 
ing official  autliorit}-.  They  were  made  l^y  an  excited  complaining  party  to  such 
officers,  who  were  just  putting  him  into  confinement.  If  not  strictly  an  official 
complaint  to  officers  of  the  law,  it  was  a  proceeiling  very  similar  to  it,  and  lie 
might  well  suppose  that  he  had  no  nght  to  say  anything  untQ  regularly  called 
upon  to  answer.  We  are  therefore  of  opinion  that  tlie  verdict  must  be  set  aside 
and  a  n(;w  trial  granted.    Commonwealth  v  Keniieij,  12  Mt.'t.  (Mass.),  '2:{"). 

Upon  the  trial  of  an  indictment  for  grand  larceny,  evidence  was  received,  on 
the  part  of  the  prosecution,  under  objection,  that  after  the  arrest  of  the  jirisoiiers 
the  prosecutor  went  to  tlieir  place  of  custody  to  identifj-  them;  that  lie  ditl  iden- 
tifi'  them,  and  charged  them  with  participation  ui  tiie  oH'ense,  stating  to  the  offi- 
cers the  part  each  took,  and  describing  tlie  money  stolen,  to  which  the  prisoners 
made  no  reply.  Upon  one  of  the  prisoners  was  found  two  parcels  of  money,  one 
answering  the  description  given  by  the  prosecutor;  tlu;  prisoners  reipiested  tliat 
the  two  parcels  should  be  kejjt  separate,  as  the  ether  was  "  bar  mon(>y:"  //(■/</, 
that  the  evidence  was  competunt,  iis  an  implied  acquiescence  on  the  part  of  tho 
accused  in  the  truth  of  the  prosecutor's  statements. 

In  delivering  the  opuuon  of  the  court,  .\llex,  J.,  makes  this  reference  to  the 
case  above  cited: 

"The  case  of  The  Commomrealth  r.  Kmneij  (12  Met.,  2:lo)  wa.s  peculiar  in 
its  circumstances,  and  the  opinion  by  tlie  learned  eiiief  justice,  spi/aking  for  the 
court,  would  seem  not  to  be  in  hiU'iuony  with  the  current  of  authority  in  tliis 
country  or  in  England,  or  with  the  elementary  writers.  It  is  distinguishablL'  from 
this  case,  in  this,  that  there  was  no  direct  evidence  of  the  body  of  the  otlense,  nor 
any  evidence  of  the  main  fact,  except  as  implied  Ijy  the  omission  of  tlie  prisoners 
to  deny  the  statement  of  the  individuals  claiming  to  have  been  robl)ed,  of  tho 
fact  of  the  ro'jlwry,  and  a  description  of  tiie  money  lost.  To  lUidce  the  evidence 
admissible  as  an  implied  adiuission  of  the  tact  state<l,  it  liad  to  bi;  assumed  that 
the  accused  had  personal  knowledge  of  the  facts  stated;  for  he  was  only  called 
upon  to  deny  and  could  only  deny  statements  of  the  truth  or  falsity  of  which  ho 
had  personal  knowledge.  Here  the  corpus  delicti  was  proved  by  other  evidence, 
and  neither  the  declarations  of  the  prosecution  nor  the  admission  of  the  prison- 


SLATTERY  v.  TKOrLE. 


88 


ers,  either  express  or  implied,  were  relied  upon  for  that  purpose."    KcUeij  r.  Pco- 
ph;  r,r,  N.  Y.,  r.G5. 

[The  reasoninf,' of  the  loiirnodjudye  in  this  case,  in  attoniptijig  to  distinguish  it 
fc-oi  1  Commonwi'itJfhr.  Kvuurij,  is  fallacious,  liecause  in  every  case,  the  testimony 
to  sliow  an  implied  admission  is  admitted  tor  the  very  puryiose  of  showinjf  that 
tlie  accused  has  personal  knowledge  of  the  facts  stated,  and  was  an  actor  in  the 
transaction.  —  I{ki'.] 

Wlien  a  matter  is  stated  in  tlio  hearinj''  of  one,  wiiicli  ui,jurionsly  affects  his 
rijrlits,  and  lie  understands  it  and  is  silent,  his  silence  may  be  taken  as  a  tacit  ad- 
mission of  the  fact  stated.  Hut  it  is  otherwise  if  it  appears  tliat  the  statement  is 
made  in  the  course  of  a  judicial  iiKinirj'.  or  wliere  circuin.--tances  e.'iisted  which  ren- 
dered a  reply  inexpedii'ut  or  imiiroper,  or  tliat  fear,  douhts  of  his  ri^i-hts  or  a  be- 
lief that  his  security  would  be  better  promoted  by  silencv!  tiian  by  a  response,  ■j:ov- 
cnied  liim  at  the  time.     Dome.lh)  v.  State,  '2  Dutch.  (N.  J.),  GUI. 

(.>ii  the  trial  of  an  indictment  for  bein<^  a  conunon  seller  of  spirituous  liquors,  a 
witiKss  teslilied  that  he  saw  sL\  barrels  beinj^'  moved  into  tlie  defi.'udaiit's  cellar, 
and  that  tiie  teamster  told  him,  in  the  defeinhnit's  presence,  that  they  were  bar- 
rels of  ^^in;  and  the  jury  were  instructed  tliat  the  remark  of  the  teamster  could 
not  be  resrarded  by  them,  miless  satisfied  that  the  defendant  heard  it:  Jhlil, 
that  this  instnjction  miylit  have  been  understood  by  the  jury  as  imiilymyj  that  the 
defendant's  silence  was,  at  all  events,  and  without  reference  to  the  accompanying 
riicumstances,  an  acijuiescence  in  the  h'uth  of  what  v.as  said;  and  that  tlie  di- 
f''!idant  was  therefore  entitled  to  a  new  triaJ.  Tlu^  comi  say:  "  An  acquies- 
cence, to  have  the  effect  of  an  admission,  nnist  exhibit  some  act  of  the  mind, 
i-unie  purpose  designed,  some  olject  intended.  IJeforo  acquiescence  in  the  lan- 
gu;4,'e  or  conduct  of  others  can  be  assumed  as  a  concession  of  the  truth  of  iuiy 
partii ..'. ''•  statement,  or  of  tln^  existence  of  any  ]iarticuhir  fact,  it  must  plainly 
api)ear  that  the  languagi'  was  heard,  and  tlie  conduct  understood.  Nor  is  that 
alone  sutHcient.  It  sliould  also  be  made  to  appear  tJiat  the  party  to  whose  silence 
a  consei|uence  so  imi>ortiint  and  material  is  attributed  had  not  only  an  opportu- 
nity to  spciik  for  hiniM'lf,  Ijiit  was  ui  a  situation  where  it  would  have  b.'cn  tit. 
suitable,  or  proper  for  him,  or  he  would  Iiave  lieen  likely,  accoriiiiit,''  to  common 
exiierii'iice,  to  have  done  so.     (\)»tminiirv(iltli  r,  llnmii.  1  Oray  (Mass,),  4^7. 

In  Mitttiirk.t  r.  Iji/iii'Iii,  Ui  Vt,,  11:>,  tin;  plaintitf  d  e' ired  in  assumpsit,  on  a 
special  contract,  by  the  terms  of  which  he  was  to  purchase  wool  which  the  de- 
fendants were  to  sell,  and  the  profits  were  to  be  divid'il.  Tiie  plain  Lilf,  to  prove 
the  allegations  in  his  deelaiatiou,  introduced  one  IhMiiley  as  a  witne>s,  who  testi- 
fied tliat.  at  fill'  ri'i|uest  of  the  plaintitf,  he  called  with  him  at  the  defendant's 
store,  and  that  the  (ilaint  iff  stated  to  the  defendant  liVman,  the  terms  of  the  con- 
tract, as  set  forth  in  the  declaraficui,  and  said  he  was  informed  that  the  wool  had 
been  sold  for  a  price  which  would  entitle  him  to  one-half  of  the  profits,  and  de- 
niaded  said  proiiortiou,  ami  that  Tiymairs  only  n'ply  was.  that  he  was  ready  to 
settle  with  him.  plaintiff;  but  that  they  did  not  on-e  him  anything,  but  that  he, 
]ilaintirt',  owed  them.  (h\  cross-examination,  the  witness  said  he  did  not  recollect 
certainly  that  anything  was  said  about  the  defendant's  furnishing  money  for  the 
lilauititf  to  pnrcha.'^e  wool  with.  The  jury  were  told  that  the  ti'stimony  of  Ihadley 
was  competent  evidence,  as  tending?  to  prove,  by  an  implied  admission  on  the 
part  of  the  defendant  Lyman,  that  the  contract  was  a.s  claimed  by  the  plaintitf; 
but  that  its  weight  must  depend  upon  the  cii'cuuistiuices  attending  it,  of  which  they 
were  judges. 

Vi.h.  I.  -3 


1 

w 

^■■•■It 

.!       :  P 

p 

M 

•di 


AMERICAN  CRIMINAL  REPORTS. 


The  oifinion  of  the  coiui  was  delivered  by  UeclScld,  J.,  who  uses  tliis  lanfnia!;^ : 
"Tlie  most  iinportiint  i)ractical  question  by  far,  ditscusued  iii  the  case,  nMnaiiid 
to  be  (letenuined.    It  seems  to  have  been  generally  considered  tliat  all  conversa- 
tion had  in  the  presence  of  a  paity,  in  reffard  to  tlic  subject  of  htiyation,  uiitiiit 
properly  be  f,'iveu  in  evidence  to  the  jury,    lint  ui  Vail  r.  SiroiKj,  10  \i.,  4"»7, 
and  in  Gailc  r.  Lincoln,  11  id.,  152,  some  qualification  of  this  ndc  is  establi^lu'd. 
It  is  there  lield,  that  unless  a  claim  is  asserted  by  the  claimant  or  liis  ayent,  and 
ilistinctly  made  to  the  party,  and  calling  naturally  for  a  reyily,  mere  silence  is  no 
Hi'ound  of  inference  a^'ainst  one.    And  we  think  even  in  sucli  a  ea.'^e.  tluit  lutn-e 
silence  ought  not  to  conclude  a  pixrty,  unless  he  thereby  induces  a  paiiy  to  act 
upon  his  silence  in  a  manner  ditt'erent  from  v  'lat  he  otherwise  would  have  actod. 
There  are  many  crises  of  this  character  when  one's  silence  ought  to  conilude  him. 
IJut  when  the  claim  is  made  for  the  mere  purpose  of  thuwing  out  evidence,  as,  in 
the  present  case,  it  is  obvious  must  have  been  the  fact,  or  when  it  is  in  the  way  of 
altercation,  or,  in  short,  uidess  the  piirty  asseitijig  the  claim  does  it  with  a  'iew  to 
ascertaui  tlio  claim  of  tlie  person  \x\)0\\  wliom  he  makes  the  demand,  luul  in  order 
to  know  how  to  regulate  his  own  conduct  in  the  matter,  and  this  is  known  to  the 
opposite  pm'ty,  and  he  remains  silent,  a-nd  thereby  leads  the  adversary  astray, 
mere  silence  is,  and  ought  to  be,  no  ground  of  ijiference  agiunst  any  one.    Tho 
liabilities  to  misapprehension,  or  misrecoUection,  or  misrepresentation,  are  such, 
th  t  this  silence  might  be  the  only  security.    To  say,  under  such  a  dilemma,  tliat 
...ence  shall  imply  assent  to  all  which  an  antagonist  may  see  fit  to  ass"rt,  would 
involve  an  absurdity  little  less  gi"Oss  than  some  of  the  most  extravagant  carica- 
tures of  this  caricature-loving  age.    Witli  some  men,  perliaiis,  sLleiici.'  would  bo 
some  ground  of  hiferring  assent,  and  with  oUiers  none  at  all.    The  testimony, 
then,  would  depend  upon  the  character  and  habits  of  the  party,  which  would  lead 
to  the  dii'cct  trial  of  the  parties,  instead  of  the  case." 


State  vs.  Clakk. 

(.54  N.  II.,  450.) 

AnuLTERT:    Proof  of  nmmage  in  criminal  cases  —  Inilictntcni  —  Comparison 

of  hamhcriiDKj. 

Under  an  imhctment  charging  Liie  respondent,  a  married  man,  with  adulter- 
ous and  la.scivious  cohabitation  with  a  single  woman,  tlie  pn(-:i'enlio]i offered 
evidence  tending  to  prove  the mamage  of  the  res)iondent  in  1^00.  'To avoid 
this  man-iage,  the  respondent  testified  in  his  own  belialf  tliat  he  liad  lieen 
man-ied  in  1>'04,  to  a  woman  who  was  still  hvuig,  and  from  whom  hi'  Jiad 
never  been  divorced:  Hchl,  that  it  wa,s  sufficient  to  nuiintain  the  allega- 
tion of  the  indictment,  if  the  jury  found  either  of  these  mairiagi's  to  be  a 
legal,  subsisting  marriage  at  the  time  of  the  cohabitation,  and  that  the  evi- 
dence as  to  both  was  properly  submitted  to  thejuiy. 

Evidence  of  a  mamage  in  fact  in  a  foreign  jurisdiction  is  prima  farii>  evidence 
of  a  valid  marriage,  and  it  is  not  r  'cessaiy  to  prove  the  foreign  law. 

AVhere,  m  the  trial,  the  respondent  admitted  the  genuineness  of  a  certain  letter 
it  was  held  that  the  jury  might  use  it  to  compare  with  the  handwriting  of 


spoil 

as  ;i 

ton 

liiiii 

that 

liiiii 

whir 

si(k'r 
tlicy 

])L'1'S 

thu  It 
thiMi 

1)0   til 

hi)  Sit 

To  tl 
man 
•was 
those 


STATE  r.  CLARK. 


35 


.!     I 


lottors  wlioso  ^'I'lmiucnoss  was  diriputi'd  by  Uie  rospondont,  but  to  whoso 
p'liuini'iii'ss  a  witiicsn  t<'stitii'(l. 
A\'hort-'  ii.n  iiidictnu'iit  cliiir};iii,i,'  tho  respondent,  a  niiUTifd  man,  with  aihdterous 
and  hiscivions  cohabitation  wtii  J.,  does  not  alk'f,^'  in  exjtfess  terms  that  J. 
is  not  liis  wiic,  but  doi's  allf^'c  that  J.  is  a  suii^ii'  woniim,  it  suttioiontly  ap- 
pears on  a  motion  in  arrest  of  ,indj,'nieiit,  that  J.  is  not  respondent's  wife, 
and  jud.i,'nient  will  not  Vie  arrested. 

lM>itTMj:\T,  t*]iiii'<i-ing  that  tlic  rcspoiidoiit,  on  tlio  first  clay  of 
A]>i'il,  A.  I).  isTl,  at  Keciio,  in  tlie  county  of  Chesliire  aforesaid, 
v.irli  force  and  arm?,  and  from  said  day  until  the  day  of  the  find- 
iiiij  of  this  indictment,  did  and  ever  since  has  continued  to  and 
still  does  lewdly  and  lasciviously  associate  and  cohahit  witli  one 
CHiai'lotte  ]\r.  Johnson,  of  said  Keene,  a  single  woman;  he,  the 
said  Thaddeus  U.  (^lark,  during  all  the  time  aforesaid  heing  a  mar- 
ried man  and  having  a  lawful  wife  alive,  who  had  not  during 
any  of  said  time  heen  absent,  ai\il  not  heard  of  or  from  for  the 
s]Kice  of  three  years  together,  nor  re]">orted  and  generally  lielieved 
to  he  dead,  and  from  whom  the  said  Thaddeus  J>.  Clark  has  never 
lieen  legally  divorced,  and  his  marriage  with  whom  prior  to  all 
the  time  aforesaid  did  not  take  jtlace  within  the  ago  of  consent, 
Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state.  The  re- 
spondent pleaded  not  guilty,  and  upon  the  trial,  offered  himself 
as  a  witness,  and  testified.  Upon  his  cross-examination,  two  let- 
ters were  exhibited  to  liim  })urporting  to  have  been  written  by 
him  to  the  Hudson  wonuin  hereinafter  mentioned,  but  he  denied 
that  thev  were  written  bv  him.  A  letter  was  then  exhibited  to 
him  purpctrting  to  have  been  written  by  him  to  a  tlilrd  person, 
which  he  admitted  was  genuine.  The  counsel  for  the  state  then 
proposed  to  read  the  llud.-on  letters  to  the  jury,  for  them  to  con- 
sider if  uj)on  a  coni])arison  of  those  letters  with  the  genuine  one, 
thev  should  be  satisfied  that  they  were  all  written  by  the  same 
person.  To  this  the  respoiulent  objected,  bnt  the  court  allowed 
the  letters  to  be  read,  remarking  to  the  jury,  that  they  must  not 
then  draw  any  inference  whatever  from  them,  1)ecause  it  might 
be  that  they  would  not,  upon  a  comparison  of  the  three  letters, 
lie  satisfied  that  the  respoiulent  wrote  the  two  Hudson  letters. 
To  this  the  respondent  excepted.  Subsecpiently  the  Hudson  wo- 
man testified  that  she  received  tlie  two  letters  by  mail,  that  she 
was  well  ac(|uainteil  with  the  respondent's  handw'riting,  and  that 
those  letters  were  in  his  handwriting. 


(i 


4 


If 


36 


AMERICAN  CIUJIIXAL  RErORTS. 


The  state  ofFercd  as  a  witness  Jennie  M.  Clark,  who  testified 

that  on  May  3,  1800,  lier  name  was  Jennie  'SL  Ilud&on;  that  j^lie 

was  tlien  a  widow;  tliat  on  tliat  day  she  was  married  to  tlie  re- 

eijondent,  at  Binghamton,  New  York,  hy  F.  A.  Durkee,  a  jns- 

tico  of  the  peace,  and  took  frum  said  Durkee  a  certiticate  of  r<aid 

marriage.     A  copy  of  this  '■•■  ^''  '  "nte  was  read  in  evidence  witli- 

ont  o])jectiun.     Said  Dark  ^(  '  .'led  by  the  respondent,  and 

testified  that  he  had  been    .  w»,,i!;...ilor  at  hiw  in  Bin<,dianiton 

about  twenty  years;  that  lie  was  a  justice  of  the  peace  on  said 

3Iav  3,  ISGG.  and  for  some  ti.iie  b(''.->re  an-'  ;  fter,  and  in  tlie  liabit 

of  solemnizina:  marriaijres,  and  tluit  lie  nuirried  tlie  JLudson  wu- 

man  on  that  day  to  a  man  calling  his  name  Clark,  but  that  he 

was  of  the  opinion  that  the  respondent  was  not  the  man.     The 

name  inserted  in  the  certificate  was  Thomas  Clark.    The  resjioiid- 

ent  testified  that  he  had  sometimes  gone  by  the  name  of  TJiomas 

Clark.    The  respondent  testified,  on  cruss-examination,  that  in 

the  spring  of  1SG4  he  was  married  to  Marietta  Xurton,  in  Elniira, 

!Xew  York,  by  James  Dewitt,  who  was  a  justice  of  the  peace; 

that  he  then  had  no  living  wife  nor  she  any  living  husband;  that 

that  marriage  was  a  legal  marriage,  he  supposed.     Xo  objection 

was  made,  until  after  a  verdict  of  guilty  had  been  returned,  to 

the  validity  of  the  Xorton  marriage,  and  none  to  the  validity  of 

the  Hudson  marriage,  except  that  the  man  to  whom  the  Hudson 

woman  was  married  by  Durkee  was  not  the  respondent. 

The  court  instructed  the  jury  that  they  were  authorized  to  find 
that  the  Xorton  marriage  was  a  legal  one;  also  that  they  were  au- 
thorized to  find  that  the  Hudson  marriage  was  a  legal  one  if  the 
Xorton  woman  had  been  lawfully  divorced  from  the  respondent 
previous  to  May  3,  ISGG.  To  these  instructions  the  respcjndent 
excepted,  upon  the  ground  that  there  was  no  evidence  that,  by 
the  laws  of  the  state  of  Xew  York  at  the  time  of  tlK)se  mar- 
riages, a  justice  of  the  peace  was  authorized  to  solemnize  mar- 
riages in  that  state.  The  respondent  did  not  refpiire  the  state  to 
prove  that  he  cohabited  with  the  Johnson  woman  as  charged  iu 
the  indictment,  but  admitted  it.  There  was  no  evidence  tending 
to  show  that  the  Xorton  won)an  had  l)een  divorced  from  the  re- 
spondent, except  what  v>-as  derived  from  her  own  declarations. 
These  declarations  were  introduced  into  the  case  as  part  of  an 
affidavit  of  the  respondent  put  in  evidence  by  the  state;  also,  as 
a  part  of  sundry  conversations  which  were  proved.    The  court 


ly  fin 
and  s( 
the  C( 
At 
the 
M.  Ill 

COUIlb 

he  w; 
woma 
Y(.>rk, 
his  CO 

no  mil 

matte 
tical, 
and  s 
marri 


\yi 


^1 


I 


STATE  r.  CLAUK. 


oi 


instniPtcd  tlio  iurv  that  tliey  nii'^lit  t-oii.'^i'ler  tliese  dccliirationis, 
and  were  authorized  to  find  tliat  siieli  a  divorce  Imd  been  jiro- 
ciired;  also,  tliiit  if  tlie  respondeat  was  informed  tliat  the  Xor- 
ton  woman  had  lieen  divorced  fi'om  him,  an<l  used  reasonable 
dili^i^'encr^  and  did  all  tliey  tbouyiit  be  reasonably  oui^bt  to  bavo 
don>j  to  ascertain  the  trntb  of  the  report,  and,  uj)on  the  informa- 
tion he  obtained,  bonestly  believed  that  sbe  bad  pnjcured  a  law- 
ful divorce,  and  that  be  bail  no  living  wife  durin^i^  the  time  be 
cobabited  witb  tbe  Johnson  wonnin  as  cbarged  in  the  indictment, 
tben  it  would  be  their  duty  to  brlni,'  in  a  verdict  of  not  guilty. 

Tbe  re>pondent  move<l  for  a  new  trial  on  account  of  said  rul- 
ing and  tbe  instructions  as  to  the  validity  of  tbe  marriages,  and 
also  moved  in  arrest  of  judgment  on  the  ground  tbat  tbe  indict- 
ment contains  no  averment  that  tbe  living  wife  tbereiii  men- 
tioned and  the  said  Charlotte  M.  Johnson  are  not  one  and  tbe 
same  jjcrson.  It  distinctly  appeared  at  the  trial,  atid  was  not 
fpiestioiied,  tluit  tbe  Norton  woman,  tbe  Hudson  -woman  and  tbe 
Johnson  woman  are  tliree  different  persons. 
\Vdli/)ij(on,  Solicitor,  for  tbe  state. 

Ilea  I  CI/  {with  wboni  was  Faulkner),  for  tbe  defendant. 


Ladd,  J.  Tbe  first  aiul  most  important  (piestion  in  tbe  case 
is,  wbetber  tliere  was  evidence  from  wbicb  tbe  iurv  mii;btle<ral- 
ly  find  tbe  fact  of  a  subsisting  marriage  Itotween  tbe  defendant 
and  some  woman  otbcr  than  Charlotte  M.  Jobnsonat  tbe  time  of 
the  cohabitation  witb  said  Jobnson  cbarged  in  tbe  irulictmcnt. 

At  tbe  trial,  tbe  prosecution  seems  to  bave  started  out  witb 
tbe  idea  of  relying  on  proof  of  a  marriage  in  fact  witb  Jennie 
3[.  Hudson,  but  on  cross-examination  of  tbe  defendant,  tbe  state's 
counsel  drew  from  him  tbe  declaration  tbat  in  tbe  spring  of  isG-t, 
be  was  married^ legally'  married,  as  be  snp})osed,  to  anotber 
wonuin,  one  ^[arietta  Xorton,  by  a  justice  of  the  peace  in  Xew 
York,  and  botb  Xorton  and  Hudson  being  alive  at  the  time  of 
bis  cobabitatioii  witb  Jobnson,  tbe  defense  take  tbe  ground  that, 
no  matter  wbetber  tberewas  or  was  not  evidence  from  wbicb  tbe 
jury  could  legally  find  tbe  fact  of  marriage  witb  Hudson,  no 
matter  witb  wbat  due  observance  of  all  forms,  civil  or  ecclesias- 
tical, tbe  rite  was  solemnized,  it  was  no  marriage,  for  tbe  plain 
and  sufficient  reason  tbat,  being  already  at  tbe  same  time  once 
married  to  Xorton,  wbo  was  still  in  life,  no  form,  no  ceremony, 


3S 


AMERICAN  CRIMINAL  RETORTS. 


no  roli'noiis  vow,  no  civil  contract  could  niiilcc  Ilndson  his  law- 
fill  wife,  because  two  women  cannot  maiutaiu  that  intinmtc  rela- 
tion with  one  man  at  the  same  time. 

Thus  far  the  defeuilant's  legal  position  is  certainly  nnas.-aii- 
ahlc.  But  what  next?  It  is  plain  that  a  nnvrriage  in  fact  with 
Xorton  is  just  as  bad  for  the  defendant's  case,  as  a  marria/jje  with 
Iludson,  and  so  his  counsel  say;  and  that  is  the  ar<^unicntof  the 
brief,  as  I  understand  it;  that  the  defendant'.i  testimony  as  to 
liis  marriage  with  Xorton  is  not  evidence  from  which  the  jury 
could  legally  find  the  fact  of  such  marriage;  in  a  word,  the  cim- 
tcntion  is  that  a  marriage  with  Xorton  was  sufficiently  ])rovi'd 
to  render  nugatory  the  evidence  of  a  marriage  in  fact  with  IFud- 
soa,  introduced  by  the  state,  but  not  to  lay  the  foundation  for  a 
conviction  upon  this  indictnn.'nt;  that  it  was  proved  sutHciontly 
to  show  that  the  defendant  was  guilty  of  bigamy  in  his  marital 
relations  with  Hudson,  but  not  sufficientlv  to  show  that  he  was 
guilty  of  the  same  crime  with  Johnson  when  he  afterwards  found 
it  convenient  to  eidarge  his  connections  by  embracing  her  in  his 
domestic  estaldishment,  which  is  obviously  contending  in  the 
same  breath  that  the  fact  of  marriaiio  with  Xorton  was  and  was 
not  ])roved  by  the  defendant's  testimony. 

By  our  statute,  "in  actions  for  criminal  conversation,  and  in 
indictments  for  adultery,  bigamy,  and  the  like,  there  must  bo 
proof  of  a  marriage  in  fact."    Gen.  Stats.,  ch.  101,  .sec.  IS. 

AVas  there  competent  evidence  from  -which  the  jury  might  find 
the  fact  of  marriage  here?  First,  how  was  it  as  to  JLudson? 
She  testified  that  on  the  third  day  of  ]\[ay,  ISOf!,  she  was  married 
to  the  defendant  at  Binghamton,  X.  Y.,  by  ¥,  A.  ]J)urkee,  a 
justice  of  the  peace,  aiul  a  copy  of  the  marriage  certificate  given 
her  l)y  Durkee  was  ])roduced.  Durkec  testified  that  he  was  a 
justice  of  the  peace  at  that  time,  and  was  in  the  habit  of  solem- 
nizing marriages,  and  that  on  that  day  he  married  ]\[rs.  Hudson 
to  a  man  calling  himself  Clark,  but  was  of  opinion  that  the  de- 
fendant was  not  the  man.  There  is  no  dispute  or  discrepancy 
except  as  to  the  identity  of  the  defendant,  and  that  was  clearly  a 
matter  for  the  jury. 

This  evidence  shows  a  marriage  ceremony  duly  ])erformed  by 
a  person  who  was  in  fact  a  magistrate;  and  it  is  to  be  jn-esnmed 
that  the  magistrate  acted  within  the  scope  of  his  legal  power  and 
authority,  until   evidence  to  the  contn 


ry  appears 


case 


man 
ortect 
ina< 
H 
thcii 
defei 
evi( 
ant. 
the 
of  tl 
him 
eJiti 
that 


m 


STATE  V.  CLARK. 


39 


^1  #3 


I 


comes  fully  within  the  doctrine  of  State  v.  Kean,  10  N.  II.,  34:7. 
Indeed,  in  that  ca^e  it  was  not  Bhown  either  that  the  person  who 
poUnnnizod  the  niarriajuje  was  in  fact  an  ordained  minister,  or 
that,  hv  the  law  of  Elaine,  an  ordained  minit>ter  ov  anv  minister 
was  authorized  to  sulemnizo  marriages,  althoui^h  it  did  appear 
tli!)t  he  had  for  a  lon^  time  oflieiated  as  a  niiinster,  and  liad  mar- 
ried other  persons.  One  ohjection  therefore,  to  the  proof  of 
marriaire  in  State  v.  Kean,  namely,  that  the  official  character  of 
the  ])erson  solemnizinif  it  was  not  shown,  does  not  exist  here; 
while  the  other,  that  it  did  not  appear  that  hy  the  law  of  Maine 
a  minister  was  authorized  to  solemnize  marriage,  which  seems  to 
he  identical  with  that  taken  hy  the  defendant  here,  was  over- 
ruled, and  the  proof  of  mai-riage  held  to  he  sutlicient.  That  case 
must  therefore  he  regarded  as  decisive  of  the  ]»resent  so  far  as 
regards  the  [»roof  of  marriage  to  Hudson.  See  Bish.  M.  &  D., 
sees.  4'J-t,  .H>.5,  4!>(;. 

I'ut  then  comes  the  testimony  of  the  defendant  as  to  his  mar- 
riage with  Norton  in  18(»-1,  and,  as  already  ohserved,  if  the  fact 
was  as  stated  hv  him  in  reference  to  that  marriaife,  the  marrian'c 
M-itli  Hudson  was  no  marriage  at  all,  assuming  that  the  tie  had 
not  heen  dissolved  hy  death  or  a  divorce.  But  his  counsel  argue 
that  his  testimony  is  not  sufficient  proof  of  a  marriage  in  fact 
with  Norton.  If  that  he  granted,  it  follows  that  the  marriage 
with  Hudson  was  the  earliest  and  in  fact  the  onlv  marriage 
iM'oved,  and  the  case  of  the  state,  so  far  as  regards  i)roof  of  mar- 
riage, was  made  out;  hut  if,  on  the  other  hand,  we  are  to  take  it 
that  the  testimony  of  the  defendant  himself  sliowed  the  fact  of  a 
marriage  with  Norton,  his  ]>re(licament  is  not  clianged,  tlie  only 
ettect  of  that  testimojiy  Ijeing  to  change  the  marriage  which  is 
made  the  hasis  of  his  conviction. 

If  we  look  now  at  the  instructions  to  which  exception  was  taken, 
their  only  fault  seems  to  he  that  they  were  too  fiivorahle  to  the 
defendant.  In  the  first  place,  we  think  there  was  no  competent 
evidence  whatever  of  a  divorce  Itetween  Norton  and  the  defend- 
ant. Therefore,  allowing  that  ([uestion  to  go  to  the  jury  with 
the  instruction  given  as  to  the  legal  etlect  of  a  helief  on  the  part 
of  the  defendant  that  such  divorce  had  heen  procured,  opened  to 
him  one  independent  ground  of  defense,  to  which  he  was  not 
entitled  upon  the  evidence.  But  the  court  instructed  the  jury 
that  they  were  authorized  to  iind  that  the  Norton  marriage  was 


40 


AMERICAN  CHIMINAL  REPORTS. 


a  le^'iil  one.  So  fur,  wo  liiivc  no  doubt,  tlie  nilin-,'  was  correct. 
It  stiuids  substantially  the  siuiie  as  the  jn'oof  of  tlie  Hudson  inar- 
via"e,  which  lias  been  already  considered,  exce]it  that  it  rested 
upon  the  testimony  of  one  witness  who  was  preseiit  at  tlie  cere- 
mony; that  i.s,  the  defendant  himself,  instead  of  two.  It  all  de- 
pundcd  upon  whether  the  jury  believed  the  testimony  of  the 
defendant.  As  to  that  niarria|,'e,  the  case  id  uot  to  be  distiu- 
^'uished  from  State  r.  Kean. 

The  jury  were  further  instructed  that  they  were  authorized  to 
find  that  the  Hudson  niurriai,'e  was  a  legal  one  if  the  Norton 
woman  had  Ijcen  lawfully  divorced  from  the  respondent  previous 
to  ^[ay  15,  ISiin.  That  the  jury  were  auth(»riz;ed  tu  iinil  the  fact 
of  marriairc  with  either  Norton  or  Hudson,  from  the  evidence 
reported,  we  ha\e  already  seen.  "W'e  also  hold  that  there  wa,s  no 
evidence  of  a  divorce.  Xow,  it  is  not  possible  to  say  but  that 
the  jury  may  have  found  a  divorce,  when  there  was  no  legal  ev- 
idence to  sustain  such  finding.  What  follows?  Simidy  that  the 
verdict  may  rest  upon  the  fact  of  marriage  with  Hudson,  when 
it  slnndd  rest  upon  the  fact  of  nnirriagc  with  Norton,  for  if  the 
jury  found  a  divorce  obtained  by  Norton,  whether  u])on  compe- 
tent or  incompetent  evidence,  they  must  of  necessity  have  found 
the  fact  of  marriage  with  Norton;  and  inasmuch  as  we  hold  that 
there  was  evidence  upon  which  they  could  legally  lind  such 
marringo,  though  not  a  divurce,  the  defendant's  situation  was  nut 
changed,  and  it  seen;s  to  be  inatterof  demonstration  that  he  was 
not  prejudiced.  No  matter  which  horn  of  the  dilemnui  be 
taken,  the  fact  of  marriau'e  was  made  out  and  was  certainlv  found 
by  the  jury  before  they  could  find  a  divorce  from  the  first  wife 
and  a  marriage  to  the  second.  That  is,  if  the  narrowest  and 
most  restricted  interpretation  possible  be  ])nt  upon  the  instruc- 
tion, and  it  be  understood  to  mean  that  the  jury  could  not  find 
a  marriage  with  Hudson  unless  they  first  found  a  divorce  from 
Norton,  it  was  too  favorable  to  the  defendant,  because  they 
might  have  disbelieved  the  defendant's  testimonv  and  found  no 
marriage  with  Norton.     It  would  follow  that  thev  could  find  no 

CD  4/ 

divorce,  and  then,  that  although  th<3re  was  abundant  pnxjf  of 
marriage  with  Hudson,  still  they  could  not  find  the  fact,  because 
they  could  not  first  find  the  fact  of  a  divorce  procured  by  Norton 
prior  to  May  3,  ISCO,  the  date  of  the  marriage  with  Hudson. 
The  jury  were  probably  instructed  that  if  there  was  no  mar- 


STATE  (-.  CLARK. 


H 


riagc  with  Norton,  tlicre  couUl  ho  no  divorce,  iind  tlint  in  such 
ciise  they  would  be  at  liberty  to  ilnd  ii  inarriiifrc  with  Hudson. 
]»iit  however  tlmt  may  have  Ijeen,  the  only  faidt  with  the  iiistnic- 
tiiMiJ^  clearly  is,  that  they  were  too  favorable  to  the  defendant, 
and  there  can  be  no  doubt  but  that  the  fact  (»f  luarria^^e,  art  re- 
tjiiired  by  the  statute,  mu8t  have  been  and  was  foun<l  by  the 
jury  under  instructions  by  which  the  defendant  could  not  have 
bfon  prfjiuliiied.  All  it  amounts  to  is,  that  the  jury  found  tho 
f;ict  of  both  marriages  when  it  was  only  necessary  that  they 
f-lioidd  tiiid  one. 

The  defendant  excepted  to  the  admission  of  two  letters  whicli 
the  state  daimeil  were  written  by  him  to  Hudson.  His  own  tes- 
timony and  that  of  ITudson  were  directly  in  conllict,  lie  swurc 
he  <lid  not  write  the  letters,  and  she  swore  they  were  in  his  hand- 
writing, etc.  It  was  competent  for  the  jury  to  compare  the  let- 
ters with  a  writing  of  his  admitteil  to  bo  genuine,  and  the  order 
in  which  the  several  ste]>s  were  taken  is  of  no  conscipience. 

The  1  >maining  (piestion  is,  as  to  the  sufficiency  of  the  indict- 
ment. Tins  question  arises  njum  a  motion  in  arrest  of  judg- 
ment, on  the  ground  that  the  indictment  contains  no  averment 
that  the  living  wife  therein  mentioned  and  the  said  Charlotte 
M.  Johnson  are  not  one  and  the  same  person.  Tlie  indictment 
is  evidently  framed  u])on  see.  5  of  ch.  2.5(5  of  the  (len.  Stats., 
which  enacts  that  '*if  any  person  having  a  husl)an(l  or  wife  alivo 
s-liMJl  marry  or  cohabit  with  any  other  jierson,  such  person  so 
iiiiirrying  or  cohabiting  shidl  be  punisheil,"  etc. 

Tlie  indictment  charges  that  the  defendant  has  and  still  does 
lewdly  and  lasciviously  associate  and  cohabit  with  one  CMiarlotto 
^1.  .lohusnn,  single  woman,  he,  the  said  Thatldens  I*.  (Hark,  du- 
ring all  the  time  aforesaid,  being  a  married  man,  and  having  a 
lawful  wife  alive,  etc.  It  is  doubtless  necessary  that  the  indict- 
ment should  set  forth  the  oit'ense  in  the  lauiruaije  of  the  statute, 
or,  at  least,  in  terms  c<[uivalent.  Stifio  v.  Gove,  34  X.  II.,  510. 
And  it  is  objected  by  the  defendant's  counsel  in  argument  that 
the  description  of  the  otl'ense  is  imperfect  and  insu-iieient  in 
that  respect,  the  words  lewdly  and  lasciviously  associated  not 
found  in  the  statute,  being  inserted  in  the  indictment.  AVe  think 
this  objection  is  not  well  fouixled,  for  the  reason  that  those  words 
may  be  stricken  from  tlie  indictment  as  surplusage,  and  there 
still  remains  a  clear  and  a  distinct  description  of  the  statutory 


I 


i^s 


(      I 


^^1 


42 


AMKUICAN  CRIMINAL  RKPORTS. 


Ml 


offonsc,  diiu'^'cd  in  the  very  laii^'nn<,'c  of  tlio  statute,  nnmely, 
tliiit  the  ivs]M»ii(loiit,  oil,  etc.,  did  uiid  still  tloes  coliahit  with  oiio 
Charlotte  M.  ./ohiisoii,  siii^de  woman,  etc. 

Ihit  the  iiidictiiicnt  does  not  alle;,'e,  in  so  many  words,  tliat 
Charlotte  ,N[.  .Johnson,  a  sin;,fle  woman,  was  not  tlie  lawful  wife 
of  Tiiaildeiis  15.  (Marie,  a  married  man;  and  tliis  is  tlie  fault  niton 
which  the  motion  in  arrest  was  hasL'd,  and  whicli  is  mainly  in- 
sisted on  now  hy  the  defendant  in  support  of  tlnit  motion. 

The  case  shows  that  it  distinctly  appeared  at  the  trial,  and  was 
not  questioned,  that  Xorton,  Hudson  and  Johnson  were  threo 
different  persons,  and  without  this  the  verdict  suihcicntly  settles 
the  fact  that  Johnson  was  not  the  wife  of  the  defendant  Clark. 
Under  the  circumstances,  it  would  seem  to  he  a  waste  of  time  to 
inquire  whether  a  form,  that  ai)i)ears  to  have  been  used  and  ap- 
proved without  objection,  is  strictly  and  technically  ])erfect  or 
not.  The  objection  conies  too  late.  If  the  averment  that  Thadde- 
ns  B.  Chirk,  a  married  man,  cohabited  with  Charlotte  ]\r.  John- 
son, a  single  woman,  is  not  a  suflicicnt  allegation  that  Johnson 
is  another  i)erson  <"roin  the  lawful  wife  of  Clark,  wc  think  the 
defect  is  one  of  form,  aiul  o])en  to  amendment  under  (ien.  Stuts., 
ch.  242,  sec.  13.  It  differs  widely  from  the  cases  referred  to  in 
the  defendant's  brief,  where  the  fault  was  in  the  description  of 
the  offense. 

The  objections  must  all  be  overruled,  and  there  must  ])o 

Judgment  on  the  verdict. 


State  vs.  Goouknow. 

(Go  M.;., ;».) 

Adulteiiy:    Crlmhial  hitrnt  —  Ignorance  of  the  htiv. 

On  the  trial  of  an  imlictmont  for  mlnltcry,  tlio  rusponaunls  oircred  to  [mw  tliat 
they  suited  in  good  faitli  under  the  iidvice  of  a  justice  of  th(>  i.ciuv,  and 
hoiiC.:t!y  thouglit  they  were  committing'  no  offense.  Ihhl,  tliat  tlie  evi- 
dence was  properly  excluded. 

Ignorance  of  tlie  law  Ls  no  excuse  for  crime. 

To  constitute  a  crime,  there  must  he  a  crijninal  intent,  hut  when  an  act  is 
uidawful,  an  intent  to  do  that  act,  havhif?  a  full  knowledfre  of  the  facts,  is  a 
criminal  intent  without  regard  to  the  party's  knowledge  of  the  law  or' that 
the  iict  is  unhuviul. 

Indictment,  alleging  adultery  on  November  21, 1ST3. 


Fey,  .^ 
etl  as  1 

i:.,  i> 

"\'ork, 
as  hut 

is:;?, 

deuce 
]iortin 
that  n 
(•ey  an 
Tlr 
fieor_ 
and  th 
to,  Cai 
this  st 
last  na 
not  ret 
said  V 
had  III: 
by  sai(| 
did 
judge 
cepti 
J,. 
I. 
must 
been 
jiei'so 
of. 
43  ^U 
the  n 
3  Grei 

In 
forme 
the  m 
to  hu 
identi 
to  sen 
II. 


r 


STATE  r.  OOODKNOW, 


4$ 


The  feiimlo  dufciulimt  was  k';,'ivlly  married  to  Gcor;^'c  AV.  Iliis- 
poy,  April  Md,  1S(;1,  iit  Turnor,  wliere  tlioy  subsi'^uuntly  cohabit- 
ed as  husband  and  wilV'.  Tiioy  afterwards  separated;  and,  ()ctul)er 
l."i,  |S(;r>,  tlie  di'tViidaiits  were  united  in  niarria^'e  by  one  Fsaac  J. 
"^'oi'lv,  a  justice  of  tiie  jjeaee,  and  tliey  ever  afterward  cohabited 
lis  hii>b:ind  iind  wife,  Tliere  warf  evidence  tliat,  I)ecend)er  14, 
IsTM,  (leorn;t?  \V.  llnssey  was  alive  at  JJyroii,  Michii;-aii  (the  evi- 
dence bein<,'  tliiit  his  niotlier  received  a  letter  of  that  date,  pur- 
]iurtin«^  to  come  thence^  from  him  by  due  course  of  mail),  and 
tiiat  notlivorce  had  ever  been  decreed  l)etween  (ieor^'e  W.  llus- 
(■ev  an('  Uydia  llussey  by  the  courts  of  this  state. 

Th  'endaiits  otl'ered  to  prove   that,  prior   to  June,  1805, 

(Jcor_,  .  1 1 ussey  had  deserted  and  al»andoned  the  said  Lydia, 
and  that  in  June,  1S()5,  he  marrieil  another  woman  from  Toron- 
to, Canada,  and  introduced  her  to  several  persons  in  Portland,  in 
this  state,  as  his  wife,  and  exhibited  to  them  a  certiiicate  of  tho 
last  named  marriajjje;  that  he  soon  after  left  this  state  ami  had 
not  returned;  that  October  1(5,  1805,  the  defendants  exhibited  to 
said  York  atlidavits  from  various  parties  that  (.Jeo,  W,  Ilussey 
had  married  luiother  woman;  that  they  were  thereupon  advised 
by  said  York  that  they  could  lei^ally  intermarry;  and  that  they 
did  so  intermarry  in  <^ood  faith;  all  of  which  the  ])residing 
judije  excluded,  and  the  defendants,  tho  verdict  being  g\iilty,  cx- 
cei)ted. 

/,,  Jf.  Ifiifi'/i'insoti  and  A.  R.  Savage,  for  tho  defendants: 

I,  To  sustain  an  indictment  for  adultery,  three  particulars 
must  be  proved;  the  co/'jhih  delicti,'  that  one  of  the  parties  had 
l)oen  ]>reviously  married  to  some  other  person,  and  that  such 
person  was  alive  at  the  time  of  the  acts  of  adultery  complained 
of.  0  Oreeid.  Ev.,  §g  204,  207;  2  AVhart.  Grim.  Law,  ^§  2051-2; 
43  ^fe.,  25S,  These  each  must  be  i>roved.  As  regards  the  third, 
the  mere  ])resumptiou  of  the  eontinuiince  of  life  is  not  sufficient. 
3  Greeid,  Kv.,  207. 

In  the  jtresent  case,  tho  only  evidence  tending  to  show  that  tho 
former  husband  of  Mrs.  Hussey  was  alive  at  the  time  alleged  in 
the  indictment  was  a  letter  purporting  to  have  come  from  him 
to  his  mother.  The  handwriting  of  the  letter  was  not  even 
identified;  and  this  evidence  is,  we  contend,  clearly  insufficient 
to  send  a  man  and  woman  to  state  prison  upon. 

II.  Tho  defendants  ap])ear  to  have  acted  in  entire  good  faith. 


U 


IHl' 


44 


AMERICAN  CRIMINAL  REI'ORTS. 


P 


They  sought  .iiul  acted  upon  the  advice  of  the  officiivting  magis- 
trate, whu  M-ati  prci^uiuably  qualified  to  give  them  jiropcr  advice. 

There  are  numberless  instances  where  parties  are  relieved  from 
the  consequence  of  their  acts,  done  in  accordance  with  the  advice 
of  those  whom  they  may  reasonably  suppose  to  be  qualified  to 
give  the  same,  including  magistrates  and  such;  much  mure, 
they  slionld  not  be  condemned. 

Tl-.e  evidence  offered  by  the  defendants,  and  excluded  l)y  (he 
presiding  justice,  shows  there  was  no  knowledge  or  intent  of 
committing  any  wrong,  much  less  a  crime. 

Knowledge  and  intent,  where  nniterial,  must  be  shown  by  the 
prosecutor.  1  AVhart.  Crim.  Law,  §  C31;  Wrii/fd  v.  The  Stute, 
6  Yerg.,  345. 

The  evidence  offered  and  excluded  shows  that  the  defendants 
acted  in  good  faith,  and  that  the  best  meaning  person  by  a  mis- 
take may  be  thrust  into  ])rison  for  a  term  of  years. 

G.  C\  Wnuj,  county  attorney,  for  the  state,  cited  as  directly 
in  point  Coinmomoealth  v.  Nash,  9  Met.,  472;  ScDiie  v.  Thomp- 
son, G  Allen,  591,  and  same  parties,  11  Allen,  23. 

Petkks,  J.  The  respondents  are  jointly  indicted  for  adultery, 
they  having  cohabited  as  husband  and  wife  while  the  female  re- 
spondent was  lawfully  married  to  another  man  who  i.s  still  alive. 
The  oidy  question  found  in  the  excejitions  is,  whether  the  evi- 
dence ofierud  and  rejected  should  have  been  received.  This  was, 
that  the  lawful  husband  had  nuirried  again,  and  that  the  justice 
of  the  peace  who  united  the  respondents  in  matrimony  advised 
them  that,  on  that  account,  they  had  the  right  to  intermarrv,  and 
that  they  believed  the  statement  to  be  true,  and  acte<l  upon  it  in 
good  faith.  It  is  urged  for  the  res])ondents,  thut  those  facts 
would  show  that  they  acted  without  any  guilty  intent,  it  is  un- 
doubtedly true,  that  the  crime  of  adidtery  cannot  be  committed 
without  a  criminal  intent.  Ihit  the  intent  may  be  inferred  from 
the  criminality  of  the  act  itself.  Lf»rd  Mansfield  states  the  rule 
thus:  ""Where  an  act,  in  itself  indifferent,  becomes  criminal  if 
done  with  a  ]iarticular  intent,  there  the  intent  must  be  proved 
and  found;  but  where  the  act  is  in  itself  ualuwful,  the  proof  uf 
justification  or  excuse  lins  on  the  defendant;  and  in  failure  there- 
of, the  law  inqilies  a  criminal  intent."  Here  the  accused  have 
intentionally  committed  an  act  which  is  in  itself  unlawful.     In 


■;j!! 


STATE  V.  GOODENOW.  # 

excuse  for  it,  tliej  plead  their  ignorance  of  the  haw.  This  can- 
not excuse  them.  Ignorance  of  tlie  huv  excuses  no  one.  Be 
sure  this  maxim,  like  all  others,  has  its  exceptions.  None  of 
the  exceptions,  however,  can  apply  here.  The  law,  which  the 
respondents  are  conclusively  presumed  to  have  knuwn,  as  appli- 
cable to  their  case,  is  well  settled  and  free  from  all  obscurity  or 
doubt.  It  would  perha])s  he  more  exact  to  say,  they  are  bound 
as  if  they  knew  the  law.  J^ato  cases  furnish  some  interesting 
discussions  upon  this  subject.  C>'tur  v.  /Stfite^'M)  N.  J.,  125; 
Cnitxl  Stdtfs  V.  Ant/io/t)/,  11  I'latchf.,  200;  Uiufed  iSfatcii  v. 
Tahitoi;  id.,  374;  2  (ireenl.  Cr.  J.aw,  218,  244,  275,  589. 
JJhick  V.  Wan/,  27  Mich.,  11)1;  aS'.  C,  15  Am.  Law  II.,  102,  and 
note,  171.  The  rule,  though  productive  of  hardships  in  partic- 
ular cases,  is  a  sound  and  salutary  maxim  of  law.  Then,  the 
rc^lK>n(]ents  say  that  they  were  misled  by  the  advice  of  the  nuigis- 
trate,  of  whom  they  took  counsel  concerning  their  marital  re- 
lations. J5ut  the  gross  ignorance  of  the  magistrate  cannot  ex- 
cuse them.  They  v/ere  guilty  of  negligence  and  faidt,  to  take 
his  advice.  They  were  bound  to  know  or  ascertain  the  law  and 
the  facts  fur  themselves,  at  their  i)eril.  A  sutlicient  crinunal  in- 
tent is  conclusively  i)resumed  against  them,  in  their  failure  to  do 
so.  The  factti  otl'ered  in  proof  may  mitigate,  but  cannot  excuse  the 
(iU'ense  diarged  against  them.  There  is  no  doubt  that  a  person 
might  commit  an  unlawful  act,  through  mistake  or  accident,  and 
with  inn.icent  intention,  where  there  was  no  negligence  or  fault, 
or  want  of  care  of  any  kind  on  his  part,  aiul  be  legally  excused 
fur  it.  Jlut  this  case  was  far  from  one  of  that  kind.  Here  it 
was  a  criminal  heedlessness  on  the  part  of  both  of  the  respond- 
ents to  do  what  was  done  by  them.  The  Massachusetts  cases, 
citud  by  the  counsel  for  the  state,  go  much  further  than  the  facts 
of  this  case  r.e<pxire  us  to  go  in  the  same  direction,  to  incu'.i)ate 
the  res])ondents.  Besides  those  cases,  see  also  t\n/imo/nvealt/i 
r.  Elirdl,  2  ^let.,  ll»0;  Coiniaonioealth  v.  l'\ii'i'en,  9  Allen, 
4M';  Colli iiioiiinLdlth  v.  (Jondiitdti,  97  Mass.,  117;  Commoii- 
v:tiflth  V.  .h'liinioiis,  98  id.,  G.  AVe  see  no  relief  for  the  re- 
spondents except,  if  the  facts  warrant  it,  through  executive  in- 
ter])osition.  J^xcejitioiis  oven'u/ed. 


i 


Ai)pleton,  C.  J.,  Walton,  Barrows,  Daiiforth  and  Virgin,  JJ., 
concurred. 


1 


46  AMERICAN  CROIINAL  REPORTS. 

McKay  vs.  State. 
(44  Tex.,  43.) 
Assault  :    Intent — Ability  to  injure  —  Pointing  unlomled  weapon. 

On  an  indictment  for  an  assault  and  battery,  where  the  cvidonco  showed  that 
the  respondent  pointed  an  unloaded  pistol  at  the  prosecutor,  nt  the  distance 
of  six  paces,  and  ordered  the  prosecutor  to  kneel  down,  which  he  did  throus-h 
fear,  it  was  held  that  this  did  not  constitute  an  assault. 

Under  the  Texas  code  pointing  an  unloaded  weapon,  without  any  actual  intent 
to  do  physical  injury,  is  not  an  assault. 

In  order  to  constitute  an  assault,  there  must  be  an  atstuu'  intent  to  do  a  physi- 
cal injuiy. 

Whore  there  is  no  ability  to  inflict  injury,  and  this  is  biown  to  the  respondent, 
he  cannot  entertain  the  intent  to  do  injury. 

Fear  on  tlic  part  of  the  prosecutor  cannot  constitute  a  threatening  ax,'t  an  as- 
sault, when  there  is  no  intent  or  ability  to  do  physical  injury,  even  tliough 
such  feai'  is  reasonable  under  the  circumstances. 

EoBERTP,  C.  J.  Tlio  charge  of  tlic  court,  wliicli  presents  tlio 
main  issue  in  tlie  case,  is  as  follows: 

"If  the  jury  believe,  from  the  evidence,  that  the  defendant 
pointed  an  unloaded  pistol  at  Daniel  Duke  (within  shooting  dis- 
tance, if  the  pistol  had  been  loaded),  with  intent  to  frighten  him, 
at  the  same  time  ordering  him  to  kneel  down,  and  that  the  said 
Duke,  not  knowing  that  the  said  ])istol  was  not  loaded,  was  made 
to  feel  afraid,  and  caused  to  kneel  down,  the  defendant  is  guilty 
of  an  assault." 

This  charire  was  given  at  the  instance  of  the  district  attornev, 
the  facts  in  proof  being  substantially  in  correspoiulence  with  it. 
The  defendant's  counsel  asked  three  charges,  to  wit:  That  if  the 
pistol  was  not  loaded,  or  if  defendant  could  not  shoot  J)id<e  with 
it,  or  if  he  did  not  intend  to  shoot  him,  he  could  not  be  convicted ; 
which  were  all  refused  by  the  court.  The  defendant  was  found 
guilty  of  a  simple  assault,  and  fined  twenty-five  dollars.  Ifc 
moved  for  a  new  trial  because  of  the  refusal  of  these  charges, 
and  that  the  verdict  was  not  warranted  by  the  evidence,  as 
well  as  on  other  grounds,  which  being  overruled,  he  gave  notice 
of  appeal. 

This  charge  above  set  ont,  and  the  refusal  of  the  counter 
charges,  are  the  main  matters  deserving  notice  on  the  appeal. 

This  charge  makes  an  apparent  attempt  to  commit  a  l)attery 
by  McKay,  which  produces  the  feeling  of  shame  or  fear  in  the 


McKAY  V.  STATE. 


41 


ini'ncl  of  Dnke,  an  assault.  This  is  Relieved  to  be  erroneous,  be- 
cause, tlie  pistol  of  McKay  beiii<^  nnloaded,  it  was  imjwssible 
for  him  to  liave  conunitted  a  battery  upon  tlic  person  of  Duke, 
and  because  the  actual  injury  in  mind,  such  as  sliame  or  fear, 
suftered  by  Duke,  Avliich  was  caused  by  the  apparent  attempt  of 
McKay  to  commit  a  battery  on  his.  Duke's,  ])erson,  is  not  a  legal 
injury  that  constitutes  an  assault,  it  being  shown  that,  by 
the  means  used,  McKay  did  not  have  the  ability  to  commit  a 
battery. 

These  propositions,  it  is  believed,  can  be  maintained  l)y  a  due 
consideration  of  the  provisions  of  our  penal  code,  that  detineand 
ex])lain  the  ollenses  of  assault  and  of  assaidt  and  battery,  which 
will  lead  to  three  important  conclusions,  having  reference  to  this 
case : 

1.  That  there  is  a  marked  ditlerence  between  the  legal  injury 
resulting  from  the  act  and  intent  of  the  assailant,  in  tlie  attempt 
to  commit  a  battery,  and  in  the  actual  iTijury  of  shame  or  fear, 
in  the  mind  ot  ihe  assailant,  that  may  have  been  intended  and 
produced  by  the  act  of  the  assailant. 

2.  To  eftect  the  legal  injury  indictable  as  an  assault,  the  as- 
eailant  must  have  the  ability  to  commit  a  battery  by  physical 
violence  on  the  ])erson  by  the  means  used. 

?..  The  actual  injury  of  shame  or  fear  in  the  mind  of  the  as- 
sailed is  not  a  necessary  element  in  the  oflen.se  of  an  assault,  and 
the  legal  injury  can  exist  as  well  without  it  as  with  it,  and  when 
shown  to  have  been  produced,  it  is  pertinent  in  the  case  only  as 
matter  of  aggravation  to  the  legal  injury. 

An  assaidt  is  an  attempt  to  commit  a  battery.  The  variation 
in  the  terms  contained  in  the  definition  are  only  difl'erent  modes 
in  stating  the  same  thing.  Tlie  definition  is,  that  "any  attempt 
to  commit  a  battery,  or  any  tlireatening  gesture,  showing  in  it- 
self, or  by  Words  accompanying  it  an  immediate  intention, 
coupled  with  an  ability  to  commit  a  battery,  is  an  assault." 

Thus  it  is  necessary  to  understand  precisely  what  it  takes  to 
constitute  a  battery.  The  definition  is,  ''  the  use  of  any  unlaw- 
ful violence  ujwn  the  person  of  another,  with  intent  to  injure 
him,  whatever  l)e  the  means  or  degree  of  violence  used,  is  an  as- 
sault and  battery." 

This  definition  makes  it  necessary  that  two  things  should  con- 
cur—  one  physical,  the  other  mental  —  an  act,  an  intent  accom- 


*:fi 


'!    '■ 


48 


AMERICAN  CRIMINAL  RETORTS. 


panjing  it,  on  tlic  part  of  A.,  when  he  commits  a  battery  on  I>., 
each  of  whicli  requires  a  particular  examination  separately. 

As  to  the  ])hysica]  act  done  by  A.,  let  it  be  supjiosecl  that  A. 
strikes  I],  a  blow  with  a  stick  on  tlie  liead,  and  wounds  liim  by 
a  bruir-e  that  is  painful;  it  is  the  blow  given  by  A.,  and  not  the 
wound  left  on  the  head  of  ]J.  that  constitutes  the  ]>liysi('al  act 
that  is  meant  in  the  first  part  of  thedetinition,  by  the  cxi>ression, 
"  use  of  violence  upon  the  person  of  another."  Violence  upon 
the  person,  as  here  used,  means  the  force  U]wn  the  ])erson,  re- 
ferring to  the  act  of  A.  in  using  it  on  the  person,  and  not  to  the 
intended  effects  on  J),  in  receiving  it  on  his  person;  for  the  ex- 
istence of  the  pain,  or  shame,  or  other  disagreeable  emotion  of 
the  mind,  on  the  part  of  !>.,  as  the  effect  or  result  of  the  blow 
on  his  person,  is  wholly  immaterial,  and  need  not  be  jiroved,  and 
when  proved  in  any  case,  is  proved  only  as  an  aggravation  of,  and 
not  as  a  necessary  fact  to  the  complete  establishment  of  the  bat- 
tery. The  means  used  by  A.  to  exert  the  force  on  the  person  oi 
B.  may  be  anything  capalde  of  producing  ]>hysical  force,  as  the 
hand,  the  foot,  a  stick,  a  rock  thrown  by  him,  or  a  bullet  shot 
out  of  a  gun  or  pistol  by  him,  so  as  to  take  effect  on  the  person, 
however  slight.  Ilence,  it  is  described  in  the  books  by  the  ex- 
pression, "the  least  touching  of  the  person  of  another,"  the 
word  touchini>:  havini;  reference  to  the  act  of  A.  that  took  Cilect 
on  the  person  of  ]>.,  and  not  to  the  bodily  or  mental  sensation  of 
B.  produced  by  it,  further  than  that  it  did  touch  him.  The  case 
above  su])posed.  presujiposes  and  evinces  that  A.  has  had  the 
physical  capacity  to  do  the  act,  and  also  embraces  the  additional 
element  that  he  intended  to  do  it,  or  that  in  the  act  of  doiui;  it, 
Vo  intended  to  do  something  else,  whicli  was  done  so  negligently 
or  carelessly  or  recklessly  as  to  be  tantamount  in  law  to  the  in- 
tention to  do  what  he  did;  otherwise,  the  act  would  be  purely 
accidental,  and  therefore  not  cr.lpable. 

In  addition  to  the  physical  act  done  by  A.,  with  the  accom- 
panying intention,  director  indirect,  as  just  specified,  it  must  also 
be  done  "with  intent  to  injure"  B.,  in  order  to  render  the  bat- 
tery unlawful.  This  injury  intended  by  A.,  the  assailant,  may 
be  to  the  mind  of  T>.  as  well  as  to  his  person.  Our  criminal 
code  provides  that  "  the  injury  intende<l  may  be  either  bodily 
pain,  constraint,  a  sense  of  shame  or  other  disagreeable  emotion 
of  the  mind." 


McKAY  V.  STATE. 


49 


It  is  not  to  be  understood,  however,  that  the  effects  upon  the 
hody  iind  mind  liere  enumerated  ns  examples  embrace  all  of  the 
effects  tliat  may  be  intended  by  A.,  the  assailant,  to  be  produced 
on  the  body  or  mind  of  lit.,  by  the  net  of  A.  in  committing  a  bat- 
tery  upon  him.  For  in  the  same  article  it  is  said,  "  when  an  in- 
jury is  caused  by  violence  to  tlie  person,  tlie  intent  to  injure  is 
presumed,  and  it  rests  with  the  person  inflicting  the  injury  to 
sliow  tlie  accident  or  innocent  intention."  Thus,  in  a  battery, 
when  A.  has  used  physical  force  upon  the  person  of  B.,  the  com- 
bined intention  to  do  tlie  act  and  to  injure  him  by  doinvj  it,  thus 
embracing  all  of  tlie  intents  necessary  to  complete  the  oftenses, 
wliatever  tliey  maybe,  is  presnmed  in  law  as  against  A.,  unless  it 
1)0  shown  that  the  act  done  by  him  was  purely  accidental,  or  that 
the  intention  with  which  the  act  was  done  ly  A.  was  innocent. 

As  in  a  case  of  homicide,  tlie  act  of  killing  being  proved,  the 
malicions  intent  is  jivesumed,  and  the  legal  injury  is  held  to  be 
consummated,  whatever  may  be  the  one  of  thousands  of  motives 
that  might  have  prompted  the  act,  or  whether  any  motive  or 
specific  intent  can  be  discovered  or  not,  unless  r;onie  evidence 
can  be  adduced  establishing  a  mitigation,  excuse  or  defense. 

In  assault  and  battery,  the  necessary  act,  to  wit,  the  "  use  of 
violence  upon  the  i)ersoii  of  another,"  is  easily  understood.  Jiut 
the  necessary  "  intent  to  injure  him"  is  not  so  easily  exjdained 
by  an  atHrmative  description.  Still,  the  necessary  act  being 
proved,  the  necessary  intent  to  injure  is  known  to  exist  as  a  le- 
gal necessity,  whether  we  can  discover,  understand  or  explain  it 
or  not,  so  that  the  two  concurring  will  constitute  the  legal  in- 
jur} of  assault  and  battery,  unless  it  be  shown  that  the  act  was 
acdidental  or  the  intention  was  innocent.  It  may  therefore  be 
said  that,  practically,  in  legal  contemplation,  the  proof  of  the 
necessary  act  either  is  or  carries  with  it  the  proof  of  the  neces- 
sary intention  to  injure,  so  as  to  constitute  the  legal  injury,  un- 
less it  is  rebutted  by  eviden^'e  showing  that  the  legal  presump- 
tion should  not  be  indulged,  which  may  not  be  by  showing  an 
.absence  of  intention  to  injure,  i)ut  by  showing  that  the  intention 
was  innocent  with  which  the  act  was  done. 

This  provision  for  presuming  an  intent  from  tlie  proof  of  tho 
act,  pervades  the  whole  criminal  law,  and  is  found  prescribed  in 
our  criminal  code  as  follows: 

"  Art.  1054.    The  intention  to  commit  an  offense  is  presumed 
Vol.  I. -4 


.  np 


60 


AMERICAN  CRIMINAL  REPORTS. 


whenever  the  means  nsed  is  such  as  would  ordinarily  result  in 
the  commission  of  tlie  forbidden  act. 

"  Art.  1G55.  On  the  trial  of  any  criminal  action,  when  the 
facts  have  been  proved  which  constitute  the  offense,  it  devolves 
on  the  accused  to  establish  the  facts  or  circumstances  on  which 
he  relies  to  excuse  or  justify  the  prohibited  act  or  omission." 
(Pasclial's  Dig.,  pp.  399,  400.) 

The  term  "  intent  to  injure  "  as  part  of  the  definition  of  an 
assault  and  batter}',  like  the  word  malice  in  that  of  murder,  can 
not  be  described  in  its  full  scope  and  meaning  by  an  affirmative 
description  only;  and  hence  it  is  necessary  to  give  an  explana- 
tion of  it  so  as  to  embrace  any  and  every  intent  witli  which  tlie 
act  of  violence  upon  the  person  of  another  is  committed  which 
is  not  shown  to  be  an  innocent  intent,  thus  giving  a  negative  as 
well  as  an  affirmative  description  of  what  is  meant,  both  of  whicli 
is  done  in  our  code.    (Paschal's  Dig.,  art.  2138.) 

Still,  it  is  not  necessary  in  assault  and  battery  tliat  any  of  the 
actual  injuries  that  are  expressly  mentioned  in  the  code  should 
be  felt  0)'  exjierienced  in  body  or  mind  by  B.,  the  party  assailed, 
as  the  result  of  the  act  of  A.  making  the  blow  on  the  person  of 
B.,  but  the  assault  and  battery  and  legal  injury  are  complete  if 
A.  intended  any  such  injury  in  striking  the  blow,  and  the  law 
makes  him  intend  the  injury  of  some  sort,  unless  the  act  is  acci- 
dental or  intent  is  iimocent,  and  is  so  shown  to  be. 

It  follows  necessarily,  then,  that  what  A.  did,  and  intended  to 
do,  as  proved  or  presumed,  is  what  the  law  regards  as  the  test  of 
the  legal  injury  in  determining  whether  or  not  the  offense  of 
unlawful  assault  and  battery  has  been  committed,  and  not  tlie 
fact  of  the  i)ain,  or  constraint,  or  sense  of  shame  or  other  disa- 
greeable emotions  of  the  mind  of  the  party  upon  whose  person 
the  force  has  been  used  by  the  assailant.  For  the  law  regards 
the  least  touching  of  the  person  of  another,  unless  accidentally  or 
innocently  done,  an  injury  to  society  —  to  the  state  —  whether 
the  individual  touched  has  thereby  suffered  the  actual  injurv, 
either  in  body  or  mind,  intended  by  the  assailant  or  not. 

An  assault  by  A.  upon  B.  embraces  all  of  the  elements  of  an 
assault  and  battery  on  him,  witii  the  single  exception  of  the  want 
of  comijleteness  in  the  performance  of  the  act  commenced  by  A., 
to  be  done  which,  if  completed,  would  liave  been  a  ])attery. 

An  assault  is  an  attempt  to  commit  a  battery;    and  "anat- 


meant: 
"1. 

sition 


as  to  II 
of  the 

AikF 
followj 
mit  a 
to  act,! 
as  thai 
which! 


McKAY  V.  STATE.  || 

tempt  i.*,  according  to  coiuinon  legal  understanding,  an  intent 
to  do  a  thing  combined  with  an  act  which  falls  short  of  the  thing 
intended."  (1  Bishop's  Cr.  Law,  sec.  059.)  The  capacity  to  do 
the  violence  upon  the  person  by  the  means  used  is  equally  im- 
plied and  necessary  in  assault  as  in  a  battery;  and  the  actual  suf- 
fering of  pain,  constraint,  shame,  (»r  otlier  disagreeable  emotion 
of  the  mind,  on  the  part  of  tlie  individual  assailed,  is  equally  un- 
necessary as  an  indei)endfnt  fact,  and  its  nonexistence,  if  proved 
or  admitted  in  any  case,  would  not  be  a  full  defense  to  an  ac- 
tion, either  civil  or  criminal.  Tliis  attempt  is  fully  described 
in  our  code,  so  as  to  embrace  every  supposable  mode  of  assault, 
as  follows:  "Any  threatening  gesture,  showing  in  itself,  or  by 
words  accompanying  it,  an  immediate  intention,  coupled  with 
tlie  ability  to  commit  a  battery,  is  an  assault."  It  must  be  no- 
ticed that  this  does  not  say  "  intentiun,  coupled  with  the  ability 
to  commit "  an  injury  on  the  individual,  but  "  intention  coupled 
with  the  ability  to  commit  a  battery  "  on  him,  which  embraces 
the  ability  and  the  intention  to  use  violence  upon  the  person  of 
tlie  individual,  and  also  the  intention  to  thereby  inflict  injury  of 
body  or  mind  on  him,  as  heretofore  explained  as  being  either 
proved  or  i)resumed. 

Xor  does  it  say  any  threatening  gesture,  showing  in  itself, 
or  by  words  accompanying  it,  an  immediate  intention,  coupled 
with  an  apparent  ability  to  cumnvit  a  battery,  substituting  in 
law,  the  apiiearance  of  an  assault  for  an  assault  in  fact.  To  pre- 
vent sucli  a  construction,  the  code  provides  that  "  by  the  terms 
'coupled  with  an  ability  to  commit,' as  used  in  article  475,  is 
meant: 

'  "  1.  Tliat  the  person  malcing  the  assaiilt  must  be  in  such  a  po- 
sition tliat,  if  not  prevented,  he  may  intliet  a  battery  on  the  per- 
son assailed, 

"  2.  That  he  must  be  in  such  distance  of  the  person  so  assailed 
as  to  make  it  within  his  power  to  commit  the  battery  by  the  use 
of  the  means  with  which  he  attemj)ts  it." 

And,  lest  that  should  not  l)c  ])lain  enough,  it  is  added  that  "  it 
follows  that  one  who  is  at  the  time  of  making  an  attempt  to  com- 
mit a  battery  under  such  restraint  as  to  deprive  him  of  the  power 
to  act,  or  who  is  at  so  great  a  distance  from  the  person  assailed 
as  that  he  cannot  reach  his  person  by  the  use  of  the  means  with 
which  he  makes  the  attempt,  is  not  guilty  of  an  assault."     And 


Pf;!: 


52 


AMERICAN  CRIMINAL  REPORTS. 


■m 


etui  not  satisfied  witl'  that,  it  is  ailded  tlmt  "pointing  an  un- 
loaded  gnn,  or  the  use  of  any  like  means  with  wliich  no  injury 
can  be  inflicted,  cannot  constitute  an  assault." 

The  word  injury,  as  used  in  this  last  sentence,  means  the  legal 
injury  produced  by  an  intentional  use  of  force  on  the  person  of 
anot]ier,and  not  theactu.al  injury  of  pain,  or  constraint,  or  shame, 
or  other  disagreeable  emotions  of  tlie  mind  in  the  person  assailed. 
For,  if  the  legal  injury  or  violence  to  the  person  was  inilicted 
by  the  means  used,  it  would  not  be  material  that  it  should  pro- 
duce the  actual  injury  of  the  body  or  mind,  such  as  shame,  fear, 
and  the  like,  provided  any  injury  was  intended.     The  word  in- 
jury is  used  in  these  two  dift'orent  senses  in  explanation  of  this 
offense,  from  which  arises  the  only  obscurity  or  uncertainty  at^ 
tending  the  subject;  but  all  which,  it  is  believed,  is  susceptible 
of  an  easy  explanation  in  harmony  with  the  i)rinciples  that  have 
been  announced.     For  instance,  "when  an  injury  is  caused  by 
violence  to  the  person,  the  intent  to  injure  is  ])resumed,  and  it 
rests  with  the  person  inflicting  the  injury  to  show  the  accident 
or  imiocent  intention.''     Here,  it  is  the  legal  injury  that  is  caused 
by  the  violence  to  the  person  and  from  Avhich  the  intention  to 
commit  the  actual  injury  of  the  body  or  mind  of  the  person  as- 
sailed is  presumed. 

And  again:  "Any  means  used  by  the  person  assaulting,  as  by 
spitting  in  the  face  or  otherwise,  which  is  capable  of  iiillicting 
an  injury,  comes  within  the  definition  of  an  assault,  or  an  as- 
sault and  battery,  as  the  case  may  be."  Here  it  is  used  in  the 
sense  of  a  legal  injury,  caused  by  pliysical  violence  used  or  at- 
tempted on  tlie  ])erson,  as  it  is  in  tlie  article  last  quoted.  Tliis 
is  so  inferred  from  the  example  given  of  pliysical  force,  as  s])it- 
ting  in  the  face,  as  well  as  tliose  given  in  the  preceding  article, 
all  of  which  as  enumerated  are  ajipi'opriate  means  for  inflicting 
physical  force  upon  the  person,  and  none  of  them  that  are  enu- 
merated are  ajipropriate  means,  such  as  words,  threats,  hostile 
appearances,  or  the  like,  calculated  to  produce  a  moral  or  mental 
force  upon  the  mind  of  the  person  assailed. 

Threats  and  hostile  appearances  would  often  be  as  ajipropri- 
ate  means  of  producing  the  actual  injury  of  constraint,  shame, 
or  other  disagreeable  emotions  of  the  mind,  as  blows  with  the 
hand,  and  frequently  more  so,  and  it  is  hardly  to  be  supposed 
that  they  would  have  been  omitted  in  the  very  careful  enumera- 


in  cunti 

shame, 

injury  i| 

certain 

injury 

means, 

the  legii 

though  I 

produce 

that  effj 

uuloadi 


i 


mm 


MlKAY  i\  STATE. 


m 


tion  of  tlio  means  tliat  could  Lc  used  in  committing  an  assault, 
or  assault  and  battery. 

In  this  view  of  the  i)r()visiuns  of  the  code,  it  is  not  in- 
tended to  lay  down  authoritative  rules,  as  ap]»licable  to  other 
cases  coming  under  the  articles  reviewed,  which  arc  not  di- 
rectly a])j)licable  to  this  ca--e,  but  to  present  general  views 
jtreparatury  to  the  ]ir(tpcr  consideration  of  the  nuvin  question 
here  now,  which  is,  What  is  the  legal  ett'ect  of  the  jtistol  being 
unloaded? 

Xow,  to  apply  these  principles,  so  far  as  apidlcable,  as  deduced 
from  our  jtenal  code,  to  the  facts  of  this  case,  and  to  the  charge 
of  the  court  thereon.  McKay  pointed  an  uidoaded  pistol  at  and 
threatened  to  shoot  Duke,  ordering  him  to  get  on  his  knees, 
which  ho  did.  This  was  an  act  in  itself,  and  coupled  with  words 
showing  an  intention  to  shoot  him,  with  the  intent  to  put  him 
under  constraint,  and  to  ])roduce  shame  or  other  disagreeable 
emotion  of  his  mind.  It  was  clearly  an  apparent  assault,  and  to 
iJuke,  who  was  doubtless  ignorant  that  the  pistol  was  unloaded, 
it  was  calculated  to  ami  did  excite  fear,  and  a  reasonable  appre- 
hension of  death  or  serious  bodily  injury,  and  was  so  intended 
by  ^[cKay.  It  falls  short  of  an  assault  under  our  code,  because 
it  is  expressly  declared  therein  that  pointing  an  unloaded  gun  at 
a  }»erson  cannot  be  an  assault,  giving  the  I'eason,  in  the  same 
coiuiectioii,  that  it  is  a  means  with  which  no  injury  can  be  in- 
tlictod,  and  it  might  be  added,  that  the  person  pointing  the  gun, 
knowing  it  to  be  unloaded,  could  not  possibly  intend,  then,  to 
shoot  the  person  ])ointed  at. 

The  injury  that  such  an  act  cannot  produce  is  the  legal  injury 
of  physical  violence  to  the  person  of  the  individual  pointed  at, 
in  contradistinction  to  the  actual  injury  of  him  by  constraint, 
shame,  or  other  disagreeable  emotion  of  the  mind,  which  latter 
injury  it  most  assuredly  could,  and  generally  would,  be  almost 
certain  to  produce.  If  It  had  been  intended  to  make  this  actual 
injury  of  constraint  or  fear,  when  produced  by  any  adequate 
nxeans,  the  test  of  the  criminality  of  the  act  producing  it,  surely 
the  legislature  would  not  have  picked  out  the  pointing  of  a  gun, 
though  unloaded,  as  the  one  to  exempt,  as  a  means  that  could  not 
produce  it,  which  act,  above  all  others,  most  commonly  produces 
that  effect,  when  it  is  not  known  by  the  person  pointed  at  to  be 
unloaded.     Yet  it  is  so  declared,  without  qualification,  condition 


54 


AMERICAX  CRIMINAL  REPORTS. 


or  exception,  tlmt  '*2'<ji»ting  m  unloaded  gun  cannot  constitute 
un  assault." 

Seriously  threatening  a  man  to  kill  liini,  done  in  anger,  is  well 
calculated  to  produce  tlie  same  ett'ect,  generally  in  a  lighter  de- 
gree only,  and  it  is  not  enumerated  as  one  of  the  means  that  can 
produce  the  legal  injury  that  is  indictable  as  an  assault.  Both 
together,  pointing  the  unloaded  pistol  and  the  threats,  as  in  this 
case,  would  not  alter  the  iiatuiv  of  the  actual  injury  of  constraint 
or  fear,  or  disagreeable  emotion,  hut  could  only  increase  it  in 
degree,  which  increase  is  only  a  matter  of  aggravation,  and  can- 
not be  made  a  distinct  ground  of  legal  injury,  when  neither  the 
pointing  the  unloaded  pistol  nor  the  threats,  separately,  can 
amount  to  a  legal  injury.  (See  Criminal  Code,  from  arts.  iil37 
[475]  to  214S  [480],  l>oth  inclusive,  raschal's  Dig.)  As  the  acts 
and  words  of  McKay  put  Duke  under  constraint,  it  may  amount 
to  false  imprisonment,  which  may  be  accomplished  by  threats  and 
various  other  means  not  amounting  to,  and  do  not,  therefore,  neces- 
sarily include  an  assault  (Paschal's  Dig.,  art.  21(5!)  [508]  ).  AVhen 
"  words  are  used,  which  are  reasonably  calculated  to  i>roduee  and 
do  produce  an  act  which  is  the  immediate  cause  of  death,  it  is 
homicide,"  committed  by  the  person  using  them,  and  is  then  of 
such  serious  consequence  that  the  law  takes  notice  of  the  words 
as  constituting  the  cause  of  the  death  (I'uschal's  Dig.,  art.  2207 
[54G]  ).  There  is  no  provision  giving  such  or  similar  ellect  to 
jnere  words  in  the  minor  offenses,  such  as  assault. 

Whether  pointing  an  unloaded  gun  or  pistol  is  an  assault, 
when  the  person  pointed  at  is  ignorant  of  the  fact  of  its  l»eing 
unloaded,  has  long  been  a  mooted  question,  which  has  been  de- 
cided both  ways  by  the  courts,  in  both  England  and  America, 
«ind  as  a  question  at  common  law,  in  reference  to  all  of  the  de- 
cided cases  bearing  upon  it,  civil  and  criminal,  it  is  one  of  ditli- 
culty,  that  has  often  been  liable  to  changes  of  opinion  and  decis- 
ions, as  may  be  seen  by  reference  to  the  numerous  cases  cited  in 
the  elaborate  brief  of  the  attorney  general  in  this  case,  for  the 
definite  settlement  of  which  long  continued  conflict,  it  may  be 
presumed,  it  was  positively  and  unqualiliedly  declared  in  the 
penal  code,  that  "pointing  an  unloaded  gun,  or  the  use  of  any 
like  means,  with  which  no  injury  can  be  inflicted,  caimot  consti- 
tute an  assault,"  which  would  be  imperative  on  this  court,  had 
all  the  decisions,  both  in  England  and  America,  been  one  way, 


anger 


McKAY.  V.  STATE. 


65 


nnd  that  njjjainst  tills  rule,  instead  of  being  vascillating  and  con- 
flicting,  as  they  have  been. 

Mr.  IJisliop,  in  his  moat  valuable  work  on  criminal  law,  says: 
"An  assault  is  any  unlawful  physical  force,  partly  or  fully  put 
in  motion.  Avhich  creates  a  reasonable  apj>reheiision  of  immediate 
physical  injury  to  a  human  being"  (2  vol.,  sec.  !j2). 

hi  the  e.xphuiation  of  the  diilerent  parts  of  the  detinition,  he 
says,  in  reference  to  the  ])erll  or  fear:  "There  is  no  need  that 
the  party  assailed  bo  put  in  actual  peril,  if  only  a  well  founded 
apprehension  of  danger  is  created,"  for  the  sutl'ering  is  the  same 
in  one  case  as  in  the  other,  and  the  breach  of  the  public  peace  is 
the  same."  He  then  gives  the  pointing  an  unloaded  pistol  as 
an  instance,  and  says:  "There  must  be,  in  such  cases,  some 
])ower,  .actual  or  a^iparent,  of  doing  bodily  harm,  but  apparent 
power  is  sntlicient." 

This  makes  an  a])parent  force  sutHcient  if  it  creates  a  well 
grounded  ap[>rehension  of  peril  in  the  party  assailed,  and  is  be- 
lieved to  be  contrary  to  the  provisions  of  our  code  in  two  respects, 
to  wit,  the  apparent  force  is  made  tantamount  to  the  actual,  and 
the  well  grounded  apprehension  of  ])eril  on  the  jiart  of  the 
assailed  is  made  one  of  the  elements  of  assault,  whereas,  by  our 
code,  if  on  the  ])art  of  the  assailant,  the  act  coupled  with  the 
necessary  intent  to  injure,  as  ju-oved  or  presumed,  is  sutHcient, 
it  is  imniiitL'rial  whether  or  not  fear  of  danger  or  well  grounded 
ap])rehension  of  ]>eril  is  created  on  the  assailed,  or  even  whether 
he  was  aware  of  the  attempt  or  not. 

If  the  ])istol  had  been  loaded,  and  otherwise  in  condition  to 
shoot  when  it  was  intentionally  ])ointed  at  J^uke  within  a  dis- 
tance that  it  could  take  effect  if  discharged,  the  manifestation  of 
anger,  and  the  threats  of  ]\[cKay  would  have  constituted  exti.i- 
neous  and  atiirniative  evidence  of  an  express  intention  to  injure, 
necessary  and  sutHcient  to  make  the  assault  complete.  So,  too, 
the  ]>ointing  the  pistol  alone,  under  like  circumstances  if  loaded, 
without  the  manifestation  of  anger  and  the  threats,  would  of 
itself  carry  with  it  the  ])resuinption  of  the  necessary  intention  to 
injure.  Such  act  intentionally  done  by  JMclvaj'  would  have  put 
in  imminent  danger  the  life  of  Duke,  who  had  given  him  no  just 
cause  to  do  it,  and  it  is  difHcult  to  imagine  how  it  could  be  pos- 
sible to  show  McK.ay's  intention  in  doing  such  an  act  to  be  inno- 
cent. 


ET5.    ■  ',      i"f 


50 


AMERICAN  CRIMINAL  RErOIlTS. 


I 


1 


But,  on  tlie  other  luiiid,  tlio  ])ist(>l  beini^  uiilumled,  tlie  jMn'iit- 
incr  of  it  was  not  an  act,  nor  tlie  cMiniiuencenient  of  an  act,  tliut 
could  possibly  have  resulted  in  a  battery  by  such  a  use  of  it,  and, 
therefore,  the  act  necessary  as  an  in<,'re(lient  in  an  nsLiault  was 
totally  wuntini,'.  For  the  error  in  the  charge  of  the  court,  the 
jiulgment  is  reversed  and  the  cause  remanded. 

liccemed  and  ntaanded. 

luLANU,  J.,  did  not  sit  in  this  case. 


State  vs.  Williams. 


(75  N.  C,  l.T-l.) 
Assault  and  Battkky:    Ituks  of  (IkcljAlnc —  Vohmhiry  as.sociatiuits. 

On  the  triiil  of  an  indictment  for  assault  and  battoiy,  tho  ovidfnco  sliowcd  tliat 
tlic  iirost'ciitrix  and  the  rewpondonts  were  uieniljers  of  a  six'iet.v  lalled  (iuoil 
Samaritans.  Tlie  fiotiety  luid  a  ceremony  of  expulsion  from  the  society. 
The  iivnsecntrix  becomin;^  remiss  in  her  duties,  the  resiiondents  luix'eeded 
to  perfonn  the  ceremony  of  expulsion,  which  consisteil  in  suspendiiij;  the 
prosecutrix  fi-om  the  wall  by  a  card  fastened  around  her  waist,  the  prosecu- 
trix rt'sis-tiuf,':  Jlrld,  that  resiwndents  were  yuilty  of  an  assault  and  batteiy. 

Rules  of  iliscipline  of  voluntary  associations  must  conform  to  the  laws. 

Tndictmknt  for  an  Assault  and  ]>attery,  tried  before  Mooue, 
J.,  at  spring  term,  187G,  of  Martin  Superior  Court. 

The  defendants  and  the  prosecutrix  were  members  of  a  benev- 
olent society  in  Hamilton,  ^N".  C,  known  as  the  "  Good  Samari- 
tans," which  societv  had  certain  rules  and  ceremonies  known  as 
tliQ  ceremonies  of  initiation  into  and  expulsiow  from  the  society. 

The  prosecutrix,  having  been  remiss  in  so-ue  of  her  obliga- 
tions, and  having  been  called  upon  to  exjilain,  became  viulent. 
The  defendants,  with  others,  proceeded  to  perform  the  ceremony 
of  expulsion,  which  consisted  in  suspending  her  from  the  wall  by 
means  of  a  cord  fastened  around  her  waist.  This  ceremony  hud 
been  performed  upon  others  theretofore,  in  the  presence  of  the 
prosecutrix.     She  resisted  to  the  extent  of  her  ability. 

There  was  conflicting  evidence  as  to  whether  they  lifted  her 
from  the  floor,  or  intended  to  treat  her  differently  from  others 
who  had  been  expelled,  and  it  was  shown  that  as  soon  as  she 
cried  out  that  the  cord  hurt  her,  she  was  released,  and  fainted 
immediately.     Her  dress  was  torn  from  her. 


IIENDRIX  V.  STATE. 


m 


The  (lofoiidiuits'  counsel  contended  tliat  if  the  defendants  only 
intended  to  perform  tlio  ueuul  ceroiilony  of  expulsion,  and  wero 
actuated  l»y  no  other  motive,  and  did  not  intend  to  liurt  her,  they 
were  not  guilty.  Tliat  in  order  to  commit  a  crime,  there  mu<t 
hu  an  unlawful  act,  coupled  with  a  vicious  will. 

Hi;-  Honor  held  that  in  any  view  of  the  case,  if  the  defen<l- 
antti  tied  the  cord  around  the  waist  of  the  prosecutrix  as  stated, 
they  were  guilty. 

There  was  a  verdict  of  guilty,  and  judgment  thereupon.  The 
defendants  aj)pealed. 

Attorney  Cieneral  ILityrcw  for  the  state.  Mulleii  cO  2Loorc^ 
and  'Widtcr  Chirk,  for  prisoners. 

Byxum,  J.  When  the  ])rosecutrix  refused  to  suhmit  to  the 
ceremony  of  expulsion  established  by  this  benevolent  society,  it 
could  not  be  lawfully  inllieted.  Jiules  of  discipline  for  this  and 
all  voluntary  associations  must  conform  to  the  laws.  If  the  act 
of  tying  this  woman  would  have  been  a  battery  had  the  jiarties 
ctmcerned  not  buen  members  of  the  society  of  "Good  Samari- 
tans," it  is  not  the  less  a  battery  because  they  were  all  members 
of  that  humane  institution.  The  punishment  inflicted  upon  the 
jterson  of  the  prosecutrix  was  wilfid,  violent,  and  against  lier 
consent,  aiid  tlius  contained  all  the  elements  of  a  wanton  breach 
of  til  peace.  Iit'It  V.  Ilandei/,  3  Jones,  131.  There  is  no  error. 
"^'A  will  be  certilicd. 

Judgment  affirmed. 


T 


"■t'>\  '■ 


IIendrix  vs.  State.  ' 

(.■)0  Ala.,  14S.) 

Assault  AND  13 ATTKUv:    Hcaiptimi  of  utohn  property  —  Oath  iojuvy — Breach 

of  the  peace. 

On  the  trial  of  an  indictmoi  'if  assault  and  battoiy,  the  respondent  offerotl  to 
lirove  that  the  assault  ami  l)attery  Wiis  committed  in  attempting  to  retake  a 
horse  which  had  been  stoh'ii  from  him  a  short  time  before,  from  a  pereou  in 
whose  possession  ho  found  it.  Held  inadmissible,  and  that  it  would  not  ex- 
cuse, justify,  or  mitiprate  the  ott'ense. 

A  man  has  no  ri^rht  to  retake  stolen  property  by  a  bresich  of  the  pesice. 

The  oath  to  tJie  jury  in  this  ciuse,  viz. :  "  Well  and  tndy  to  try  the  issne  joined 
and  a  tru^  verdict  to  render  according  to  the  evidence,"  was  held  sufficient 
under  the  Alabama  statute. 


:•  1 


.f  \i 


i   I 


ITS 


AMFFICAN  CRIMINAL  REPORTS. 


Brickell,  J.  The  defendant  was  indicted  for  an  assanlt  and 
battery  on  one  Dallas  Parvin.  Evickncc  was  ottered  on  the  trial 
tending  to  prove  the  cuinnus  ion  of  the  assault  and  battery,  aiid 
to  show  that  it  was  caused  by  ihe  refusal  of  the  prosecutor  to  i^Ivo 
up  to  the  defendant  possession  of  a  mare  which  he  was  ridiny;, 
and  Aviiich  was  claimed  by  the  defendant. 

The  defendant  ottered  to  prove  that  the  mare  was  his  property 
and  had  been  stolen  from  him,  a  short  time  before,  in  i^under- 
dale  county.  The  state  objected  to  the  admission  of  this  evid- 
ence, and  the  court  sustained  the  objection;  and  this  rulini,'  of 
the  court,  to  which  an  exception  was  reserved  by  the  defendant, 
is  now  assigned  as  error. 

If  the  true  owner  is  deprived  of  the  possession  of  his  property 
by  fraud,  force,  or  any  other  illegality,  he  may  lawfully  reeluini 
and  retake  it,  whenever  he  can  do  so  without  a  breach  of  tho 
peace.  But,  as  it  is  said  by  Blackstone,  "  The  public  ])eace  is  a 
superior  consideration  to  any  one  man's  private  pr(»perty;  and  as, 
if  individuals  were  once  allowed  to  use  priv:ite  force  as  a  remedy 
for  private  injuries,  all  social  justice  must  cease,  tho  strong 
would  give  law  to  the  weak,  and  every  man  would  revert  to  a 
state  of  nature;  for  these  reasons,  it  is  provided  that  this  natural 
right  of  recaption  shall  never  be  exerted  wJiere  such  exertion 
must  occasion  strife  and  bodily  contention,  or  endanger  the 
peace  of  societ\;,"  3  Wendell's  Blackstone,  4.  If  the  evidence 
ottered  had  been  admitted,  it  could  not  have  justitied,  excused, 
or  mitigated  the  otlense  with  which  the  defendant  was  charged. 
If  his  purpose  was  to  reclaim  his  horse,  he  should  have  sought 
that  pin-pose,  not  by  violence,  but  through  the  ])eaceful  remedies 
of  the  law.  The  law  cannot  countenance  the  substitution  of 
physical  violence  in  the  ]»laco  of  these  remedies.  The  ourt  did 
not  err  in  the  exclusion  of  the  evid»mce. 

2.  There  was  no  error  in  the  oath  administered  to  thejurv. 
They  were  sworn  "well  and  truly  to  try  the  issue  joined,  and  a 
true  verdict  to  render  according  to  the  evidence." 

This  is  a  substantial  compliance  with  the  statute  (Rev.  Code, 


§  4092),  and  nothing  more  is  rcfpiired. 


Judgment  ajii'med. 


COMMONWEALTH  v.  COLLBERG.  59" 

COMJIONWKALTII  VS.  Coi-LBERO. 

(119  Miiss.,  im.) 

Assault  axd  Battkiiy:    Firjhtlng  hij  mutual  af/recmcut. 

Oil  an  indietmont  for  assault  and  Ijattory  wlvro  the  evMenco  was  that  the  re- 
spinnU'iit  and  anothi.'r,  by  nmtual  aj^reciniMit,  wi'ut  out  to  fij^iit  cm'  another 
in  a  ruth'ijd  i)lace,  and  (Ud  li^dit  in  the  presence  of  from  fifty  to  one  hundred 
l)ersons,  and  that  botli  were  bruised  in  the  fifjht,  which  continueil  until  one 
of  tiie  i)arties  di'chirt.'d  himself  satisfied,  it  was  hchl  that  each  was  guilty  of 
an  assault  and  battery  on  the  oflier. 

All  titflitin!,'  is  unlawful,  and  it  is  of  no  conseiiuence  that  it  is  by  mutual  ayrce- 
nit'iit  and  without  anger  or  malice  on  the  piirt  of  those  engaged  iu  it. 

Endicott,  J.  It  appears  Ijj  the  bill  of  exceptions  that  the 
]iartie9  by  mutual  agreement  wont  out  to  light  one  another  in  a 
retired  place,  and  did  figlit  in  tlie  presence  of  from  fiftj'  to  one 
liuufh'ed  persons.  ])oth  were  bruised  in  tlie  encounter,  and  the 
ii<flit  continued  until  one  said  that  lie  was  satisfied.  There  was 
also  evidence  that  the  parties  went  out  to  engage  in  and  did  cn- 
giige  in  a  "  run  and  catch  "  wrestling  match.  We  are  of  opinion 
that  tlu)  instructions  given  by  the  presiding  judge  contained  a 
full  and  accurate  statement  of  the  law. 

The  common  law  recognizes  as  not  necessarily  imlawfnl  cer- 
tain maidy  sjxtrts  calcul^t  .jd  to  give  bodily  strength,  skill  and 
activity,  an<l  "  to  lit  i)eople  for  defense,  public  as  well  as  per- 
sonal, in  time  of  netid."  Playing  at  cudgels  or  foils,  or  wrest- 
ling by  consent,  thci-e  being  no  motive  to  do  bodily  harm  on 
either  side,  are  said  to  bo  exercises  of  this  description.  Fost.  C. 
L.,  251),  2fi(>.     (^.m.  Dig.  Plead.,  3  m.,  18. 

Put  pri/.e  lighting,  lK>xing  matches,  and  encounters  of  that 
kind,  serve  no  useful  purpose,  tend  to  breaches  of  tlie  peace,  and 
are  unlawful  even  when  entered  into  by  agreement  and  without 
auger  or  mutual  ill  will.  Post.  C  L.,  200;  2  Greenl.  on  Ev,, 
§S5;  1  Steph,  X.  P.,  211, 

If  one  i>arty  license  another  to  beat  him,  such  license  is  void, 
because  it  is  against  the  law,  Matthev)  v.  Ollerton,  Comb.,  218. 
In  an  action  for  assault,  the  defendant  attempted  to  put  in  evid- 
ence that  the  plaintiti'and  he  had  boxed  by  consent,  but  it  was 
hehl  no  bar  to  the  action,  for  boxing  was  uidawful,  and  the  cou- 
Boiit  of  the  parties  to  light  could  not  excuse  the  injury.  Boul- 
ter V.  Clark,  liull.  X.  P.,  10.    The  same  rule  was  laid  down  in 


60 


AMERICAN  CRIMINAL  REPORTS. 


Stoiitv.  Wren,  1  Hawks  (X.  C),  420;  uiul  in  Bdl  v.  Uanslcy, 
3  Jones  (X.  C),  131.  In  Adams  v.  Waggoner,  33  Intl.,  531,  the 
authorities  are  reviewed,  and  it  was  held  tliat  it  was  no  bar  to  an 
action  for  assault  that  the  parties  fought  each  other  by  mutual 
consent,  but  that  such  consent  may  be  shown  in  mitigation  of 
damages.  See  Logan  v.  Austin,  1  Stew.  (Ala.),  470.  It  was  said 
by  Coleridge,  J.,  in  Reghm  v.  Lewis,  1  0.  ifc  K.,  -119,  that  "  no 
one  is  justified  in  striking  another  except  it  be  in  self-defense, 
and  it  ought  to  be  known,  that  whenever  two  persons  go  out  to 
strike  each  other,  and  do  so,  each  is  guilty  of  an  assault;"  and 
that  it  was  immaterial  who  strikes  the  first  blow.  See  Hex  v. 
FerTcins.  4  C.  &  P.,  537. 

Two  cases  only  have  been  called  to  our  attention,  where  a  dif- 
ferent rule  has  been  declared.  In  Champer  v.  State,  1-1  Ohio 
St.,  437,  it  was  held  that  an  indictment  against  A.  for  an  assault 
and  battery  on  B.,  was  not  sustained  by  evidence  that  A.  as- 
saulted and  beat  B.  in  a  fight  at  fisticuffs,  by  agreement  between 
them.  This  is  the  substance  of  the  report,  and  the  facts  are  nut 
disclosed.  !Xo  reasons  are  given  or  cases  cited  in  support  of  the 
proposition,  and  we  cannot  but  regard  it  as  opposed  to  the  weight 
of  authority.  In  State  v.  Bed;  1  Iliii  (S,  C),  303,  the  opinion 
contains  statements  of  law  in  which  we  cannot  concur. 

£xcej}tions  overruled. 


DoEuiuNO  vs.  State. 
(49Ind.,  5G.) 

Assault  axd  Battery:    Arrest  —  Dumjcrous   ucapoii  — Question  of  fact  — 
Policeman  —  Presumption. 

On  an  indictment  agiunst  tlie  respondent,  a  policeman,  for  an  assault  and  bat- 
tery on  a  brother  of  one  wiiom  he  had  lurested  for  huveny,  witliout  a  war- 
rant, and  who  was  apparently  endeavorin;,'  to  .issist  the  prisoner  to  escape, 
It  vas  held,  that  what  is  a  dangerous  weapon  is  a  (jnejition  of  fact  aiid  not 
of  law,  iind  that  the  court  has  no  right  to  instmct  tlie  jury  as  matter  of  law, 
that  a  policeman's  mace  is  a  dangerous  weapon. 

A  peace  officer  may  huvfully  arrest,  without  a  wiurant,  one  vhom  he  has  rea- 
sonable cause  to  suspect  of  a  felony,  and  it  is  not  ni'cessa:  l  tr  his  justifica- 
tion to  establish  the  guilt  of  the  suspected  person. 

It  appearing  that  respondent  was  a  policeman,  the  court  \vill  presume  that  he 
possesses  the  ordmary  powers  of  a  peace  officer. 


:; 


BuSKIRK,  C.  J. 


This  was  an  indictment  against  the  defendant 


DOEHRING  V.  STATE. 


61 


for  an  assaxilt  and  battery  upon  the  body  of  one  Thomas  Green. 
There  was  a  trial  by  jury,  a  verdict  of  guilty,  assessing  a  fine  of 
one  cent.  There  was  a  motion  for  a  new  trial,  which  was  over- 
ruled, a  motion  in  arrest  of  judgment,  which  was  also  overruled, 
and  the  court  rendered  judgment  on  the  verdict. 

The  defendant  was  a  policeman,  of  the  city  of  Evansville,  and 
as  such,  was  informed  that  a  brother  of  the  prosecuting  witness, 
Jim  Green  by  name,  had  stolen  a  box  of  cigars.  Ui)on  that  in- 
formation, he  arrested  said  Green,  lie  was  taking  the  prisoner 
to  tlie  city  prison,  and  on  his  way  there,  passed  the  house  of  the 
jirosecuting  witness.  The  prisoner  expressed  a  desire  to  see  his 
brother,  the  prosecuting  witness,  and  Wivs  told  by  the  defendant 
that  he  could  see  him  outside  the  house. 

All  the  persons  present  agree  in  their  testimony,  that  the  pris- 
oner attempted  to  either  go  into  the  house  or  escape,  and  that 
the  api)ellant  knocked  him  down  twice  with  his  nuice.  In  the 
scntile  that  ensued,  the  appell.ant  and  the  prisoner  got  around  the 
corner  of  the  house  of  the  prosecuting  witness,  about  ten  feet 
from  the  corner.  At  this  point  of  time,  the  prosecuting  witness 
heard  the  noise,  and  went  out  and  placed  his  hand  upon  the 
shoulder  of  the  appellant,  and  turned  him  around  to  the  gas 
light.  The  theory  of  the  state  is,  that  the  prosecuting  witness 
heard  the  noise  and  went  out  to  stop  it,  without  knowing  who 
the  parties  were,  and  that  he  gently  laid  his  hand  upon  the  ap- 
pellant and  turned  him  around  to  the  gas  light  to  see  who  he  was. 
On  the  other  hand,  it  is  contended  tliat  the  prosecuting  Avitness 
knew  M-ho  the  ]>arties  were,  and  went  out  to  aid  his  brother  in 
cseai)ing.  All  the  witnesses  agree,  that  he  laid  his  hand  on  the 
ofticer  before  he  was  struck.  The  a])pellant  struck  him  over  liis 
his  head  with  a  mace.  It  is  further  argued,  that  it  can  nuiko  no 
difference  what  the  real  purpose  of  the  prosecuting  witness  was, 
if  the  appellant  liad  reason  to  believe,  and  did  believe,  that  his 
]iurpose  was  to  aid  in  the  escape  of  his  brother.  The  prisoner 
did.  in  fact,  make  his  escai)e. 

Counsel  for  appellant  contend  that  the  secoiul  instruction  was 
erruneous,  because  the  court  told  the  jury  that  the  weapon  used 
was  a  dangerous  one,  when  the  question  should  have  been  sub- 
mitted to  the  jury  to  determine,  as  a  question  of  fact.  The  in- 
struction was  in  tliese  words:  "in  coming  to  a  conclusion  in 
this  case,  it  is  important  that  you  should  consider  the  character 


i  "i 


11 


62 


AMERICAN  CRIMINAL  REPORTS. 


of  the  weapon  used.  Custom  seems  to  sanction  die  use  by  police 
establishments  of  pistols,  maces,  and  other  dangerous  and  deadly 
\veapons,  but  they  ought  to  use  such  weapons  prudently.  There 
can  be  no  doubt,  and  as  to  this  the  jury  and  counsel  for  the  state 
and  defendant  will  fully  agree  with  me,  that  the  weapon  used  by 
the  defendant  in  this  case  was  a  dangerous  weapon.  Did  he  use 
it  recklessly  or  cruelly,  or  did  he  use  it  prudently  i " 

It  is  the'duty  of  the  court  to  charge  the  jury  as  to  all  matters 
of  law  applicable  to  the  facts  proved.  It  is  the  province  of  the 
jury  to  ascertain  the  facts.  Tlie  question  of  whether  a  particu- 
lar weapon  was  or  was  not  dangerous,  was  a  rpiestion  of  fact,  and 
not  of  law,  and  hence  should  have  been  submitted  to  the  jury  for 
ascertainment.    Barker  v.  The  State,  -tS  Ind.,  1()3. 

It  is  also  claimed  that  the  court  erred  in  giving  the  following 
instruction :  "  If  the  defendant  made  the  arrest  of  James  Green 
for  a  felony,  on  information  and  not  on  view,  he  made  it  at  his 
own  peril;  and  in  order  for  him  to  justify  the  assault  upon 
Thomas  Green,  tlie  prosecuting  witness,  when  it  becomes  a  mat- 
ter of  inquiry,  it  devolves  upon  the  defendant  to  show  that  the 
party  under  arrest  was  guilty  of  the  crime  for  which  he  was 
arrested." 

In  our  opinion,  the  instruction  was  clearly  erroneous. 

It  never  was  necessary,  under  the  law,  for  a  ])eace  olHcer  to 
"  show  that  the  party  under  arrest  was  guilty  of  a  crime  for 
which  he  was  arrested."  A  peace  officer  has  a  right  to  arrest 
without  a  warrant,  when  he  is  present  and  sees  the  t)ilense  com- 
mitted. He  has  a  richt  to  arrest  without  a  warrant  on  informa- 
Mon,  when  he  has  reasonable  or  probable  cause  to  believe  that  a 
felony  has  been  committed;  and  herein  there  is  a  distinction  as 
to  the  extent  of  his  authority.  In  cases  of  misdemeanor,  the 
officer  must  arrest  on  view  or  under  a  warrant;  in  cases  of  felony, 
lie  may  arrest  without  a  warrant,  upon  information,  where  he 
has  reasonable  cause.  And  the  reasonable  or  probable  cause  is 
an  absolute  protection  to  him,  "  when  it  becomes  a  matter  of  in- 
quiry,'* and  in  no  case  is  he  bound  to  establish  the  guilt  of  the 
party  arrested.  1  Ililliard  Torts;  49  Ind.,  2d  ed.,  283,  234, 
235,  and  notes. 

In  Ilolley  v.  Mix,  3  "Wend.,  350,  the  court  held:  "  If  an  inno- 
cent person  is  arrested  upon  suspicion  by  a  private  individuid, 
such  individual  is  excused  if  a  felony  was  in  fact  committed 


DOEHRING  V.  STATE. 


C3 


and  tliere  was  reasonable  ground  to  suspect  the  person  arrcsto<l. 
Y>\\t  if  no  felony  was  eoniinitted  by  any  one,  and  n  i)rivate  indi- 
vidual arrest  witliout  a  warrant,  sncli  arrest  is  illegal  though  an 
olHcer  would  be  justified  if  he  acted  upon  information  from 
another  which  he  had  reason  to  rely  upon." 

In  Samuel  v.  Pidne,  I  Doug.,  35i),  Lord  Mansfield  held  that 
if  any  jierson  charge  another  with  felony,  and  desire  an  officer 
to  talce  him  in  custody,  such  charge  will  justify  the  officer, 
though  no  felony  was  committed. 

In  a  ^IS.  note  of  a  case  of  Wdlhiins  v.  Dmvson,  referred  to 
by  counsel  in  Iluhhii  v.  Bransromh,  3  Camp.,  4:20,  ^Ir.  Justice 
Ihilier  laid  down  tlie  law,  that  "if  a  peace  officer  of  his  own 
head  takes  a  person  into  custody  on  suspicion,  he  must  prove 
tliat  there  was  such  a  crime  committed;  but  that  if  he  receives 
a  person  into  custody,  on  a  charge  preferred  by  another  of  fel- 
ony or  breach  of  the  peace,  then  he  is  to  be  considered  as  a  mere 
conduit,  and  if  no  felony  or  breach  of  the  peace  was  committed, 
the  person  who  preferred  the  charge  alojie  is  answerable." 

In  llohJjy  V.  lii'dnscomh,  sujrra,  Lord  Elleid)or(;ugh,  in  speak- 
ing of  the  rule  laid  down  by  Judge  I3uller,  said:  "This  rule 
appealed  to  be  reasonable,  and  that  very  injurious  consequences 
might  follow  to  the  public,  if  peace  officers,  who  ouglit  to  re- 
ceive into  custody  a  person  charged  with  a  felony,  were  person- 
ally answerable,  should  it  turn  out  that  in  point  of  law  no  fel- 
ony had  been  committed." 

In  1  Chit.  Crim.  Law,  22,  the  law  is  stated  thus:  "  Constables 
are  l>ound,  ujion  a  direct  charge  of  felony,  and  reasonable 
grounds  of  sus[)icion  laid  before  them,  to  ajiprehend  the  party 
accused,  and  if  U})on  a  charge  of  burglary,  or  other  felony,  he  be 
recpiired  to  apjirehend  the  oil'ender,  or  to  make  hue  and  cry,  and 
neglect  so  to  do,  he  may  be  indicted.  Aiul  a  peace  officer,  upon 
a  reasonable  charge  of  felony,  may  justify  an  arrest  without  a 
warrant,  although  no  felony  has  been  committed,  because,  as  ob- 
scrvi'd  by  Lonl  Hale,  the  constable  cannot  judge  whether  the 
party  be  guilty  or  not,  till  he  come  to  his  trial,  which  cannot  be 
till  after  his  arrest;  and,  as  observed  by  Lord  IMansHeld  in  tSani- 
1/rl  V.  P(i!)h',  if  a  man  charges  another  with  a  felony,  and  re- 
quires another  to  take  him  into  custody,  and  carry  him  before  a 
magistrate,  it  wouhl  be  most  mischievous  that  the  officer  should 
be  bound  first  to  try,  and,  at  his  peril,  exercise  his  judgment  in 


'.I 


C4 


AMERICAN  CRIMINAL  REPORTS. 


I  "Vii''ii 


iJHi 


the  truth  of  the  charge;  he  that  makes  the  charge  should  alone 
be  answcrahle;  the  officer  does  his  duty  in  conveying  the  ac- 
cused before  a  magistrate,  who  is  authorized  to  examine  and 
commit,  or  discliarge." 

The  law  applicable  to  arrests  by  a  private  person  is  stated 
with  great  precision  and  clearness  by  Tilghman,  C.  J.,  in  Wale- 
l!/v.Ilart,G  Binn.,  310;  where,  after  quoting  a  provision  of 
the  stute  coiistitntion  and  commenting  thereon,  it  is  said :  "  But 
it  is  nowhere  said,  that  there  shall  be  no  arrest  without  warrant. 
To  have  said  so  would  have  endangered  the  safety  of  society. 
The  felon,  who  is  seen  to  commit  murder  or  robbery,  must  be  ar- 
rested on  the  spot  or  sutfered  to  esca])e.  So  although  not  seen, 
yet  if  known  to  have  committed  a  felony,  and  pursued  with  or 
without  a  warrant,  he  may  be  arrested  by  any  person.  And 
even  when  there  is  oidy  probable  cause  of  suspicion,  a  private 
person  may  without  warrant  at  his  peril  make  an  arrest.  I  say 
at  his  peril,  for  nothing  short  of  proving  the  felony  will  justify 
the  arrest.  These  are  principles  of  tlie  common  law,  essential 
to  the  welfare  of  society,  and  not  intended  to  be  altered  or  im- 
paired by  the  constitution." 

We  think  the  instruction  under  examination,  when  applied  to 
arrests  by  a  private  person,  expresses  the  law  correctly,  but  when 
applied  to  arrests  by  peace  officers,  is  clearly  erroneous. 

It  is,  hoAvever,  insisted  by  the  Attorney  General,  that  there  is 
nothing  in  the  record  showing  that  the  aj^pellant  possessed  the 
powers  of  an  ordinary  peace  officer.  The  city  of  Evansville  is 
governed  by  a  special  charter,  which  does  not  define  the  powers 
of  the  police  force.  The  charter  confers  on  the  common  coun- 
cil power  "to  establish,  organize  and  maintain  a  city  watch,  and 
prescribe  the  duties  thereof,"  and  "  to  regulate  the  general  police 
of  the  city." 

The  ordinances  of  the  city,  defining  the  duties  and  prescribing 
the  powers  of  the  police  force,  were  not  read  in  evidence.  It  is 
earnestly  claimed  that  we  cannot,  under  these  circumstances,  in- 
dulge the  presumption  that  the  appellant  possessed  the  powers 
of  a  conservator  of  the  peace.  We  take  notice  of  the  existence 
of,  and  the  powers  conferred  by,  the  city  charter,  and  that  Ev- 
ansville has  a  city  government.  It  was  proved  that  the  appel- 
lant was  acting  as  a  policeman  in  such  city.  We  think  wo 
should  indulge  the  presumption,  that  the  police  force  of  such  a 


COMMONWEALTH  r.  HAWKINS. 


Co 


city  possessed  the  ordinary  powers  of  peace  officers  at  coinmou 
law,  but  we  do  not  think  tlie  presinni)tion  sliould  lie  carried  be- 
yond tlie  jiowers  possessed  by  conservators  of  the  peace  at  com- 
mon law. 

A  full  and  accurate  statement  of  the  powers  and  duties  of  the 
police  force,  under  the  general  act  of  incorporation  of  cities,  will 
be  found  in  Boaz  v.  Taic,  43  Ind.,  GO. 

The  judgment  is  reversed,  witli  costs;  and  the  cause  is  re- 
manded for  a  new  trial,  in  accordance  with  this  opinion. 

Judgment  reversed. 


COMMOXWEALTU    VS.    ILVWKINS. 
(11  Ihish,  Ky.,  C03.) 


Ass.vri-T  AND  Battkuy:    linach  of  llie  peace  —  Former  conviction  —  Statute 

construed. 

On  an  indictinont  for  an  iiK-iiiuU  imd  Iiuttorj',  tlio  respondent  pleaded  that  ho 
had  bi'en  trii'd,  convicted  and  lined  for  u  lireach  of  tlie  poane,  and  tliat  said 
conviction  was  for  the  identical  fa'ts  charged  in  the  indictment.  On  appeal 
from  an  onler  dismissinjf  the  indietnit'tit,  the  facts  alle^^ed  in  the  plea  bein.? 
admitted  to  be  trne,  it  was  held,  tiiiit  the  plea  v/as  good,  and  the  former 
conviction  a  bar  to  the  prosecntion  of  the  indictment. 

A  statute  which  punishr-s  the  inflictin;,'  of  wounds  Viy  shooting  or  bj'  cutting, 
thrusting  or  stabbing  with  a  knife,  dirk,  sword  or  other  deadly  weapon,  does 
not  embrace  striking  and  wounding  with  a  pair  of  Ijlacksmith  tongs,  and  an 
indictment  charging  the  latter  w;us  Jwld  to  charge  a  simple  assault  and 
battery  only. 


CoFKK,  J.  The  indictment  in  this  case  charged  that  tlie  ap- 
pellee "did,  in  sudden  heat  and  passion,  without  previous  malice, 
and  not  in  self-defense,  Ktril'e  and  wound  George  Gregory  with 
a  pair  of  blacksmith  tongs,  which  said  tongs  was  then  and  there 
a  deadly  weapon." 

The  appellee,  in  a  plea  of  former  conviction,  alleged  that  he 
had  been  arrested  and  tried  and  convicted  before  a  justice  for  a 
breach  of  the  peace,  committed  by  fighting  with  George  Gregory, 
and  had  paid  the  fine  assessed  against  him,  and  that  said  convic- 
tion was  for  the  identical  acts  charged  in  the  indictment. 

A  demurrer  to  the  plea  having  been  overruled,  the  common- 
wealth confessed  the  facts  stated  therein,  and  the  indictment  wag 
Vol.  I.-5 


I     ^ 


GG 


AMERICAN  CRIMINAL  REPORTS. 


(lismissed,  and  this  appeal  is  prosecuted  to  obtain  a  reversal  of 
that  judgment. 

The  indictment  does  not  state  facts  constituting  an  oifensc 
■\vitliin  section  1,  article  17,  chapter  29  of  the  (reneral  Statutes. 
Tliat  section  only  applies  to  wounds  inflicted  by  sliooting,  or  by 
cutting/,  thrusting  or  stahblng  with  a  knife,  dirk,  sword,  or  otlier 
deadly  weapon,  aiid  does  not  embrace  a  looundimj  such  as  is 
charged  in  this  case. 

The  indictment  was  therefore  good  only  as  an  indictment  for 
an  assault  and  battery,  and  the  cjuestion  is,  whether  a  conviction 
for  a  breach  of  the  peace  is  a  bar  to  a  8nb?^quent  pron^ecution  for 
an  assault  and  battery  constituting  a  part  jf  the  transaction. 

This  question  came  before  this  court  in  1S;37,  in  T/ie  Com- 
monwealth V.  Miller,  5  Dana,  370,  and  it  was  then  held,  though 
not  without  some  hesitation,  that  conviction  for  a  breach  of  the 
peace,  uidess  obtained  b}'  the  fraud  or  collusion  of  the  party 
pleading,  was  a  bar  to  an  indictment  for  an  assault  and  battery 
committed  in  the  breach  of  the  peace  for  which  the  defen'lant 
had  been  fined. 

Since  that  time  tlie  subject  has  been  rejieatedly  passed  ujioii 
by  courts  of  last  resort,  both  in  this  country  and  England,  and 
we  think  the  decided  weight  of  authority  is  in  accord  with  the 
fornier  decision  of  this  court. 

The  breach  of  the  peace  for  which  the  appellee  was  tried  is  a 
distinct  offense  from  that  of  assault  and  battery  fur  which  he 
•was  indicted,  but  was  embraced  in  the  latter  because  there  can 
not  be  an  assault  and  battery  without  a  breach  of  the  peace. 

The  breach  of  the  peace  being  included  in  the  assault  and 
battery,  it  is  impossible  that  the  appellee  should  be  convicted  of 
assault  and  battery  without  being  also  convicted  of  the  l)reach  of 
the  peace;  and  thus,  as  he  has  already  been  found  guilty  of  a 
breach  of  the  peace,  he  would  be  in  jeopardy  a  second  time  for 
the  same  offense  — ?.  e.,  for  breach  of  the  peace  — and  if  con- 
victed and  punished,  he  would  he  twice  punished  for  one  offense, 
which  is  repugnant  to  both  the  common  law  and  our  own  written 
constitution.    1  Bish.  Cr.  Law,  sec.  6S3. 

Judxjment  affirmed. 


lies, 


enf( 


(MT( 


huIivkI 
inal 


PAULK  V.  STATE.  ^f 

Paulk  vs.  State. 

02  Ala.,  427.) 

Bastakdy :    1  lUjmmnmenf for  debt  —  Eihhnce. 

Bastard}'  is  a  i)ona!  prococdiuf,',  nnd  hns  sonic  of  the  cliariictoristica  of  a  civil 
actiun  iind  somo  of  a  criminal  prosecution.  Imprisonment  of  the  putativo 
fiithcr  for  non-compliance  with  a  jiidifment  in  a  liustardy  proceeding,'  does 
not  infrin<,'e  the  constitutional  i)rovision  against  imiirisonnient  for  debt. 

In  ahii.«tardy  proceeflinj,',  it  si'cms  that  it  is  proper  to  show  on  hclnilf  of  the  de- 
fendant tliiit  tiie  chikl  resembles  a  third  person,  who  has  had  opportunity  for 
illicit  intercourse  with  the  mother. 

lu  abiistarily  proceedini,',  evidence  to  show  that  the  bastard  re.semble<l  the  chil- 
dren of  a  man  wlio  had  beL'n  seen  with  the  prosecutrix  is  inadmissible,  being 
too  remote  ami  unsatisfactory. 

Ari'KAL  from  the  Circtiit  Coiirt  of  Randoljjh. 

Tried  l)efure  Hon.  John  IIkn'dkkson. 

Tills  was  a  procec(liii<^  against  appellant  under  the  statutes  for 
hastanlj.  On  the  issue  before  the  circuit  court  as  to  the  ])ater- 
nity  of  the  child,  the  mother  testified  that  appellant  was  its 
father.  The  defendant  then  introduced  a  witness  who  testified 
that  he  "  had  seen  one  Clark  ^[essmer  with  the  prosecutrix  on 
two  occasions  since  liie  comniencenient  of  the  prosecution,  and 
that  both  times  they  were  going  in  the  direction  of  the  court 
house;"  that  he  had  seen  the  bastard  child  and  "  that  it  favored 
Clai'h  2[exKmri'\'<  r/u'/ifren.'^ 

To  the  italicised  portion  of  this  testimony  the  state  objected, 
and  the  court  thereupon  excluded  it  from  the  jury. 

The  jury  having  found  the  issue  against  defendant,  and  he 
beiii"  unable  to  <rive  bond,  the  court  sentenced  him  to  jail,  as  the 
statute  requires.  The  defendant  denying  the  power  of  the  court 
under  the  constitution,  to  make  such  order,  objected  and  except- 
ed to  the  sentence. 

Wif/iani.  II.  Smith,  for  appellant: 

I.  Under  the  constitution  there  can  be  no  imprisonment  for 
debt.  None  of  our  laws  make  bastardy  a  crime.  The  proceed- 
ings authorized  by  the  statute  are  not  criminal.  The  governor 
cannot  pardon  the  defenihmt.  If  the  parties  marry,  or  the  child 
dies,  the  jiroceeding  al)ates.  It  is  a  mere  proceeding,  then,  to 
enforce  the  performance  of  a  civil  duty  in  behalf  of  a  particular 
individual;  in  other  words,  a  debt.  No  statute  makes  it  a  crim- 
inal otFense  to  refuse  to  give  the  bond.    The  case  against  defend- 


%  ■ 


.  ;l' 


68 


AMKIUCAN  CRIMINAL  REPORTS, 


ant  is  not  required  to  be  made  out  beyond  a  "  reasonable  doubt." 
Everytliin<,'  shows  tliat  it  is  a  mere  civil  proceeding. 

II.  Proof  to  show  tlie  prol»a1>ility  of  another  guilty  agent  id 
always  admissible,  Tiie  evidence,  however  ■weak,  cannot  be  ex- 
cluded if  it  has  a  tendency  to  prove  the  issue,  lirickell's  Digest, 
80!),  §  S2,  Tliat  the  proof  offered  was  admissible  on  an  issue  uf 
paternity,  see  Lord  Mansfield  in  Domjlass  Case,  Wills  on  Cir- 
cumstantial Evidence, 

Joliii  IF,  A,  Sait/oi'd,  Attorney  General,  contra. 

BuiCKKLL,  0,  J,  A  proceeding  under  the  statute  to  compel  a 
putative  father  to  the  support  and  education  of  a  bastard  child, 
during  the  helplessness  of  mere  infancy,  has  some  of  the  charac- 
teristics of  a  civil  action  and  of  a  criminal  prosecution.  It  is 
commenced  by  a  complaint  on  oath,  on  which  a  warrant  of  arrest 
issues  in  the  name  of  the  state.  A  preliminary  examination  is 
had  before  a  justice  of  the  peace  of  the  county  in  which  the  wo- 
man is  pregnant  or  delivered  of  the  child,  and  if  sufficient  evi- 
dence appears,  the  accused  is  recognized  to  appear  at  the  next 
term  of  the  circuit  court.  If  he  fails  to  enter  into  the  recogni- 
zance with  sufficient  sureties,  he  is  held  in  custody.  Entering 
into  the  recognizance  and  failing  to  appear  in  obedience  to  it,  a 
forfeiture  is  incurred,  and  a  writ  of  arrest  issues  against  him,  as 
in  criminal  cases  on  indictment.  On  his  appearance  in  the  cir- 
cuit court,  an  issue  is  made  up  to  which  he  and  the  state  are  the 
parties,  to  ascertain  whether  he  is  the  real  father  of  the  child. 
If  this  issue  is  found  against  him,  judgment  is  rendered  against 
him  for  the  costs,  and  he  is  required  to  give  bond  and  security 
payable  to  the  state,  conditioned  for  the  payment  annually,  for 
the  period  of  ten  yer  .s,  of  such  sums  not  exceeding  fifty  dollars 
a  year,  as  the  court  may  prescribe,  for  the  support  and  education 
of  the  child.  Failing  to  give  the  bond,  the  court  renders  a  judg- 
ment against  him  of  necessity,  in  the  name  of  the  state,  for  such 
8um  as  at  legal  interest  will  yn'oducc  the  sum  he  is  required  to 
jiay  yearly,  and  "he  must  also  be  sentenced  to  imprisonment  for 
one  year,  unless  in  the  mean  time  he  execute  the  bond  required, 
or  pay  the  j udgment  and  costs."  K.  C,  §§  -iSOG-liOf*,  The  pro- 
ceeding is  certainly  penal  in  its  charactei,  if  not  strictly  crim- 
inal. On  the  trial  in  the  circuit,  the  accuser  and  the  accused 
are  alike  competent  witnesses.     It  can  be  commenced  only  on 


■^ 


PAULK  r.  STATE. 


69 


ft 


the  cninjiliiiiit  of  tlio  inotlicr.  Xu  indlotinent  or  prcsontint'iit  by 
a  ;,'riunl  jury  is  neccssurv  to  support  it.  It  abates  on  the  death 
of  tilt'  chilli,  and  tlie  marriai^'e  of  the  motlier  and  putative  father 
vacatts  the  iiroceodiiin^,  thoUi;'h  it  lias  i)ro<i;rosse(l  to  liual  judf^- 
iiiciit.  It  is  a  j)L'nal  proceediuLT  inten<led  t<)  relieve  the  state 
from  tlie  duty  of  luaiutainiui;  the  illej^itiniate  child,  rather  than 
to  inflict  jiunisliment  for  the  violation  of  law.  It  is  founded  on 
the  hypothesis  that  it  is  a  duty  due  to  society  from  the  putative 
father  to  maintain  and  educate  his  ille^-itlmate  child,  and  the 
purpose  is  to  coinjtel  perfonmince  of  this  <lnty.  Jujhji-  of  Cotin- 
fi/  Coitrf  r.  7r< /•/',  17  Ala.,  ."»JS;  Salteni'lrite  v.  Stote,  28  id.,  05. 

The  constitutional  inhibition  of  im])risf»nment  for  debt  is  in^t 
infrini^cd  by  the  imprisonment  of  the  putative  father  if  he  fails 
to  execute  the  bond  recpiired  of  him  on  conviction.  lie  is  im- 
prisoned not  for  the  failure  to  pay  a  debt,  but  for  his  failure  to 
perform  a  duty  —  a  duty  enforced  in  the  name  of  the  state,  for 
the  protection  of  the  state. 

On  an  issue  foi'nied  in  a  bastardy  proceeding,  it  is  doubtless 
competent  for  the  defendant  to  prove  that  the  child  bears  no 
likeness  ov  resemblance  to  him,  or  that  it  re>end)les  some  other 
])er8on,  who  had  opi)ortunities  of  illicit  interct)urse  with  the  moth- 
er. This  was  not  the  kind  of  evidence  offered  by  the  appellant. 
The  proposition  was  to  permit  a  witness  to  state  the  bastard  child 
favored  the  children  of  another  num.  It  was  not  ])roposed  to 
show  these  chihlren  favored  their  father.  A  child  often  re- 
scinljles  only  liis  mother,  and  has  none  of  the  distinguishing 
features  or  physical  peculiarities  of  the  father.  Nor  was  it  of- 
fered to  show  H'hat  were  the  particulars  in  which  the  bastard  re- 
sembled or  favored  the  children  of  the  person  named.  It  was 
the  mere  opinion  of  the  witness  that  the  children  did  bear  a  re- 
scnd)lance.  There  is  nothing  about  which  the  opinions  of  indi- 
viduals differ  so  widely  as  personal  likeness  or  resemblance. 
One  discovers  it,  where  another,  instead  of  finding  traces  of  it, 
finds  distinctive  marks  of  opposition.  The  evidence  was  too 
vague  and  uncertain,  too  inconclusive  in.  its  nature,  to  have  gone 
to  the  jury.  It  could  not  liavc  exerted  any  legitimate  influence 
on  the  verdict  they  were  required  to  render.  In  the  case  of 
Conimouwealth  v.  Wehster  (.5  Gush.,  302),  it  was  material  for  the 
defendant  to  show  that  the  person  he  was  charged  to  have  slain 
was  in  life  after  a  particular  hour  of  a  certain  day.    "Witnesses 


•'    41 


•^ 


Ml 


I 


w 


70 


AMERICAN  CRIMINAL  REPORTS. 


wcro  introduced  who  testified  that  thoy  snw  him  in  varioiH 
idiices  in  lUmtoii,  after  that  ho\ir.  Tu  rebut  tliiri  evidence,  it  was 
propo.-ed  to  sliow  there  wa^  a  jtertion  about  the  streetrtof  Mostuu, 
at  tliat  time,  wlio  bore  a  stronjjj  resemblance  to  tlie  deceased  in 
form,  gait,  and  manner,  and  had,  l)y  i»ersons  acquainted  witli  tlie 
deceased,  been  approaclied  and  ein)lvfcn  to,  fortlie  deceased.  Tlie 
evidence  was  rejected  as  too  remote  and  unsatisfactory,  and  was 
properly  rejected.  T/ie  jiuhjnient  in  ojfiriiial. 


l\ 


n\ 


1  KOPLE   VS.  ClIIMSTMAN. 

(60  111.,  103.) 

Bastakdy:    Degree  of  proof — Jioh/ment. 

Baatardy,  though  in  fonu  crinuiial,  is  in  ett'oct  a  civil  proceitlinff  and  a  piepon- 
deraiiceof  evidonce  is  Bufficiont  to  justify  a  conviction. 

A  judgment  for  the  pajiuciit  of  several  instalments  of  money  and  the  costs  of 
prosecution  and  that  the  defendant  "  execute  a  proper  ami  sutHcient  lioml 
for  tlie  pajT.ient  of  the  jud{,'nient  herein  in  due  form  of  law  "  is  held  not 
open  to  the  objection  that  it  requuvs  the  defendant  to  yive  a  bond  lor  tho 
pajnueut  of  tlie  costs, 

SiiELDox,  J.  This  was  a  prosecution  on  a  charge  of  bastardy, 
■where  a  verdict  and  judgment  were  rendered  against  the  defend- 
ant, from  which  he  has  appealed. 

It  is  urged  that  the  verdict  was  against  the  evidence.  After 
a  careful  examination  of  the  testimony,  we  find  that  it  sustains 
the  verdict,  and  that  tliere  is  no  sufficient  ground  for  disturbing 
the  finding  of  the  jury  upon  the  evidence. 

We  perceive  no  error  in  the  instructions.  It  is  objected  to 
the  first  one,  that  it  tells  the  jury  they  may  convict  on  a  prepon- 
derance of  evidence.  It  has  often  been  held  by  this  court  that 
the  proceeding  in  question,  though  in  form  criminal,  is,  in  effect, 
a  civil  proceeding,  and  that  it  is  not  essential  to  a  conviction 
that  the  evidence  of  guilt  should  exclude  every  reasonable  doubt, 
but  that  a  preponderance  of  proof  will  be  sufficient.  Ma  nil  v. 
The  People,  35  111.,  407;  Moloney  v.  The  People,  38  id.,  62; 
Allison  V.  The  People,  45  id.,  37. 

It  is  objected  to  the  form  of  the  judgment,  that  it  requires  the 
defendant  to  give  a  bond  for  the  payment  of  tlie  instalments  for 


McCOY  V.  PEOPLE. 


Tl 


tlio  support  (»f  tlio  chikl.  Tlio  defeiidaiit  is  adjudged  to  pay  tho 
tuverul  iiirttaliut'iitrf  of  money  and  the  costs  of  the  prosecution, 
and  to  *'  execute  a  jn'oper  and  sutlicient  l»ond  for  the  payment  of 
the  judgment  lierein  in  due  form  of  law." 

Tlie  statute  only  re^piires  the  bond  to  be  given  for  the  pay- 
ment of  the  instalmentsof  mcjney  adjudged  to  be  paid,  and  we  do 
not  think  the  judgment  should  l)e  construed  as  re([niring  any- 
thing more  than  the  statute  (htes,  in  this  respect.  AVe  consider, 
then,  that  under  the  judgment,  the  defendant  is  only  reipiired  to 
give  Ijond  for  the  instalments,  and  not  for  the  costs  of  suit. 

The  judgment  must  be  allirmed. 

Judgment  affirmed. 


McCov  vs.  Pkoi'mc. 

(G.J  m..  4:59.) 

BASTAiinv:    Siiflicieiici/ of  eridenee. 

On  a  eliarrro  of  liiisturdy  ^vlli(■ll  iV  sniiportcd  only  liy  tho  uncon-ohoratod  testi- 
mony of  till'  iirosccutrix,  she  hcuij,'  contnulictod  liy  tlircc  uniniiicaclii'd  wit- 
ni'SKt',-,  us  to  litT  liavini,'  liatl  sc.wial  intin-courso  with  otliiu-H  bcsidiM  tin.' 
iloti'ndant  ahoiit  tho  tinu!  tho  child  was  lic^'otton,  and  it  appr'ariny  that 
slin  had  pivvionsly  t'harj,'i'(l  the  piit(<rnity  of  tho  child  on  anotlior  man,  tho 
pvidonco  Ih  livid  too  unsatisfactory  to  fix  tho  i)attn-nity  of  the  chikl  on  the 
defendant. 

SuKi.nox,  J.  The  proof  of  the  charge  of  bastardy  made  in  this 
case  rests  npon  the  unsupported  tcstimojiy  of  the  complainant. 

She  testified  that  she  gave  birth  to  the  child  on  the  15th  day 
of  August,  ]s71 ;  that  it  was  the  result  of  a  single  act  of  illicit 
intercourse  between  herself  and  the  defendant,  in  the  middle  or 
latter  jiart  of  Xovendier,  1S70,  and  that  that  was  the  only  in- 
stance of  such  intercourse  she  ever  had  with  the  defendant  or  any 
other  person. 

On  the  part  of  the  defense,  the  defendant,  by  his  own  testi- 
mony, denied  the  charge  in  all  its  ]>arts. 

Another  witness  testilied  that  he  himself  had  sexual  intercourse 
with  the  comjdalnant  as  often  as  once,  and  sometimes  twice,  a 
week,  during  the  months  of  October  and  November,  1S70,  and 
that  during  her  i)regnancy  she  informed  him  of  her  ct)ndition, 
and  inquired  of  him  what  he  was  going  to  do  about  it.  Two 
other  witnesses  testify  to  having  surprised  the  complainant  and 


I 


' 


'^i^' ! 


72 


AMERICAN  CRIMINAL  REPORTS. 


fq 


Btill  unotlior  pcri^oii  in  tlie  direct  act  of  sexual  intercourse,  in  Oc- 
tuLer  or  Xo\'enil)er,  1870. 

TIk!  coinplaiiiant  liad  informed  lier  own  father  that  the  fatlier 
of  tlu!  cliikl  lived  at  Sliannon,  in  another  county,  that  of  Carroll; 
in  conse(]uence  of  whicli,  her  fatlier  went  tliere  to  see  the  person 
on  the  siihject.  Tiie  defendant  never  lived  at  that  j)lace,  as  tlie 
coniplainaiit  lierself  testified.  This  was  a  circumstance  aU'ectiny; 
the  credibility  of  her  testimony. 

The  witnesses  on  the  part  of  the  defendant  were  in  no  way  at- 
tcm])ted  to  bo  imjieaclied,  save  that,  as  to  two  of  them,  it  was  re- 
lied upon  as  detractin<jj  from  their  credibility,  that,  previous  to 
the  nialciui^  of  the  complaint  in  this  case,  they  had  made  volun- 
tary allidavits,  before  a  justice  of  the  peace,  of  the  facts  wluch 
they  testiiied  to  on  the  trial. 

In  vic'w  of  the  whole  testimony,  a  majtu'ity  of  the  court  rei^ard 
it  as  too  unsatisfactory  to  fix  the  paternity  of  the  child  nj)on  tlie 
defemlunt,  and  the  court  below  should  have  set  aside  the  verdict 
as  beiiii,'  clearly  a^^ainst  the  weight  of  evidence,  and  have  g-ranted 
a  new  trial. 

The  judgment  is  reversed  and  the  cause  remaiuled. 

Jiuhjment  reversed. 


PkoI'LE  V8.  Buowif. 
(:M  Mich.,  ;J39.) 

Bir  A^rv:    Vohl  srcond  marnniio  —  MKrniiijfl  of  nr(jro  and  irJii'i;  woman. 
It  if  Jio  (l(;fcns(j  to  a  cliarK''  of  lji{,'iuny  thiit  tin;  si'coiiil  iiKUTia<,'i>  wius  oiio  lie- 
twcitii  a  n(,'f,TO  iiiid  a  whito  woiiiuii,  wliioli  is  prolubitwl  uiid  maJo  void  by 
stMtuti'i  for  i:v(-'ry  biganious  mamayii  i.s  void. 

BiciAMY:  G'tKl  of  the  ajfeunc —  Tiro  clrinoils  of  UlrijuTitil. 
It  in  the  cntcriii;,'  into  tlie  void  iiiiimii>,'c  wliiK;  a  prior  valid  marriage  exists, 
thiit  coiistitutcs  (lii^  jrist  of  ihe  ofl'fiisi';  iind  it;  cannot  hciip  niatlnrs  any  that 
tlu.'iv  an;  two  clcmfMits  of  L!loi,ndity  in  the  case,  instead  of  on* .  It  is  no  valid 
reason  for  rclifvinK-  ;i,  person  from  tliGeonsi'(iiienee.s  of  violating  ono  statute, 
that  the  act  of  doiL^r  so  violated  also  luiother. 

Exf"Ei'Tioxs  from  llec(;rder's  Court  of  Detroit. 

Submitted  on  brief  Juno  13.     Decided  June  20. 

A.  J.  SinM,  Attorney-General,  for  the  People,  argued  that  a 
bigamous  msirriagc  is  always  void;  that  no  man  can  lawfully 
inarry  when  he  is  already  married;  tliat  the  gist  of  the  oiieuse  is 


PEOFLE  V.  BROWN. 


73 


tlio  \x<n\\'^  flirougli  tlie  ceromoiiy  of  marriage  and  living  with  the 
wotuiiii  as  if  married  when  tlie  party  is  ah'eady  lawfully  married; 
that  the  viohition  of  two  statutes  does  not  relieve  from  liability 
under  either;  that  two  wrongs  do  not  make  a  right;  that  even 
where  tiie  sec(;nd  nuirriage  is  ineestnous,  the  olleiider  is  nevertlie- 
less  liiihhi  for  bigamy.  Kisliop  on  Stat.  (!r.,  §  51»0-2,  and  note; 
Ji<:r  r.  iienxini,  5  C.  k,  P.,  412;  R^ij.  o.  Jinunih,  1  C.  &  K.,  1-il; 
yA'//«v  V.  J\o2)le,  5  Parker,  3_>.j;  Jloseoe  Cr.  Ev.,  ;Wl)-10;  2 
J'.isiiop  Cr.  L.,  g  1025. 

Jaiais  11.  Gudock,  for  rcspou<lent,  to  the  point  that  to  sustain 
a  t'onviction  for  bigamy,  the  seeond  marriage  must  liave  been 
piicli  a  one  as  would  have  been  in  all  res[)eets  legal  and  valid,  ex- 
cept for  the  fait  that  the  defendant  th(;n  had  a  former  wife  liv- 
ing, cited:  '.',  (Jreeid.  Kv.,  ^  2i).");  liishopon  Stat.  Cr.,  §  092;  R<;g. 
V.  F<(,uir)Hj,  17  Irish  0.  L.,  2St>;  10  Cox  ().  C,  411;  Burt  v. 
Jiiirf,  2  Swnley  &  Tristram,  SS;  Carmirhrrcl  v.  State,  12  Ohio 
St.,  554;  I/u>/i!{t  V.  People,  25  X.  Y.,  iVJS;  Jiefj.  v.  Mllloi\10 
CI.  &  F.,  USD. 


(\)(»!.i;v,  (\  ,[.  The  defendant  .stH.d<h:  to  avoid  the  ])enaltiep  of 
a  hii'-amous  marrian'e  bv  showi'ii;  that  he  i>'  a  negro,  and  that 
the  (jther  ))arty  to  the  marriage  was  a  white  woman,  with  whom, 
under  the  statute,  it  was  impossible  for  him  to  contract  mariiago 
at  all.  Coinp.  Ij.,  -^  4724.  1'he  argument  is,  that  if  the  ceremony 
(tf  niarrlag(!  has  taken  place  :»etween  [>arties  who,  if  single,  would 
be  incMpalile  of  contracting  luarriage,  the  marriage  ceremony  is 
mi'rely  idle  aim  void,  and  the  respoiulent  cannot  be  said  to  have 
been  married  the  second  fiine  at  all. 

The  logic  of  the  iirgument  is  not  very  obvious.  It,  certninly 
caiuiot  be  based  np(  n  any  idea  that  there  must  be  so'nething  of 
Itinding  and  obligatory  forci-  in  the  second  marriige;  for  every 
bigamous  niatriage  is  Noid,  and  it  '.s  the  entering  into  the  void 
miu-riage  while  a  valid  marriage  exists  that  the  t-tatute  punishes. 
Kor  can  we  understand  of  what  imi)ort:ince  it  can  be  that  there 
are  two  elements  of  illegality  in  the  case  instead  of  one,  or  why 
the  ]iarty  .diould  b(!  relieved  from  the  consecpienees  of  violating 
one  statute  beciuise  the  act  of  doing  so  was  a  violation  of  another 
also. 

The  authoritie.s  sanction  no  such  doctrine.  There  arc  loose 
Btatements  in  some  of  the  cases,  that  tlie  second  marriage  must 


74 


AMERICAN  CRIMINAL  REPORTS. 


have  henx  one  tli.it,  but  for  the  existence  of  the  first,  would  have 
been  valid;  but  these  evidently  relate  to  the  acts  and  intent  of  the 
parties,  and  not  to  the  legal  ability  to  unite  in  a  valid  relation. 
It  was  decided  in  Hex  v.  Benson,  5  C.  *fc  P.,  412,  that  bigamy 
was  committed  in  marrying  a  woman  under  an  assumed  name, 
thougli  by  law  such  a  marriage  Iwtween  persons  capable  of  con- 
tracting would  be  void.  The  case  of  Jiajhia  v.  Brown,  1  C.  & 
K.,  144,  was  similar  to  the  present  in  its  facts,  and  Lord  Den- 
man  in  summing  up  said:  "  It  is  the  appearing  to  contract  a  sec- 
o!id  marriage,  and  the  going  through  the  ceremony,  which  con- 
stitutes the  crime  of  bigamy,  otherwise  it  never  could  exist  in 
ordinary  casa?,  as  a  previous  marriage  always  renders  nul'  and 
void  a  marriage  that  is  celebrated  afterwards  by  either  of  the 
parties  during  the  life  time  of  the  other.  "Whether,  therefore, 
the  marriage  of  the  two  prisoners  was  or  was  not  in  itself  pro- 
liibited,  and  therefore  null  and  void,  does  not  signify,  for  the 
woman,  having  a  husband  then  alive,  has  cojnmitted  the  crime 
of  bigamy,  by  doing  all  that  in  her  lav  by  entering  into  marriage 
with  another  man."  These  cases  .i..e  recognized  in  the  case  of 
Hayes  v.  Peojde,  25  X.  Y.,  390,  which  is  relied  upon  by  the 
respondent,  but  which  affords  no  C(juntenaiice  for  his  exceptions. 
The  recorder's  court  must  be  advised  that  we  find  no  error  in 
the  record,  and  that  judgment  should  be  pronounced  on  the  ver- 
dict. 

The  other  justices  concurred. 


COMMOXWEALTU   VS.    TaCKSOX. 

(11  Bush  (Ky.),  G79.) 
Bi(!AMy:    Eridi'Hce  of  mco'nage. 


In  a  proFOCution  fnr  bi<,mmy,  ovidoneo  of  tlic  dcdiLratioiw  of  the  r(wi)on(l(int  tluit 
a  ccrtam  woman  was  his  ^\^f(•,  ami  of  the  fact  tliat  lie  liad  lived  with,  n-co^'- 
mz(?d,  introducod  and  represented  her  as  his  wife,  is  siiifideiit  evidence  of  a 
marriatr(,>  to  submit  to  tliejiuy. 

In  a  prosecution  for  bi^faniy,  the  (irst  niaiTia^'o  may  be  pr.ivfnl  liy  the  adiiiiwion 
of  the  respondent,  in  connection  witli  r.K'ogiiitJon  and  cohalntatJon,  but  tliese 
are  only  facts  tenduig  to  show  an  actuiU  majriaj?.',  wliich  mu.st  bo  foiuid  ad 
a  fact  by  the  juiy. 

CoFEu,  J.    The  appellee  was  indicted   in  tlic  Lewis  circuit 


glUMg 

with  tl 
she  wii 

The 
indictn 
of  the 
testinu 
emnizii 
(leclara 
and  liv 
sutHclc 

This 
the  aui 
and  pe 
cutioii: 


COMMONWEALTH  v.  JACKSON. 


m 


court  for  the  crime  of  Ligiuny,  and  was  tried  by  a  jury,  and  un- 
der a  peremptory  instruction  of  the  court,  was  found  not  guilty, 
and  tlie  attorney  general  prosecuted  this  a])peal  under  section 
331  of  the  CriiiMMal  Code,  in  order  to  obtain  the  opinion  of  this 
court  11'  jHiint  decided  adversely  to  the  commonwealth  by 

the  circuit  court. 

The  only  evidence  of  a  marriage  of  the  appellee  prior  to  that 
alleged  to  be  ]>()lyg;Miioii-.  consisted  of  evidence  of  his  declara- 
tions that  another  woman  was  his  wife,  .and  of  the  fact  that  he 
had  lived  witli,  introduced  and  represented  her  as  his  wife. 

One  witness  testified  that  tlie  appellee  lame  to  Maysville  as 
e;u']\'  as  Septcab.  r.  1874,  and  engaged  to  sell  sewing  machines 
for  him;  that  lu'  'Im  n  said  he  was  a  married  man,  and  that  1  is 
wife  was  in  Iligginsport,  in  tlie  state  of  Ohio;  that  he  (witi  .os) 
subfte(piently  let  the  ap])ellee  have  money  with  which  ho  said  he 
M'auted  to  bring  his  wife  from  Iligginsport  to  ]\[aysville;  that 
lie  brought  a  lady  U)  Maysville,  whom  he  introduced  to  witness 
as  his  wife,  and  boarded  with  her  in  a  respectable  family;  that 
the  lady  gave  birth  to  a  child  while  in  Maysville,  ami  that  the 
oppellee  told  him  it  was  liis  child,  and  that  his  wife  liad  given 
birth  to  another  child,  which  had  died  in  Ohio,  the  funeral  ex- 
penses of  which  the  witness  ])aid  at  appellee's  re(piest. 

Another  witness  testified  that  two  or  three  weeks  before  the 
alleged  second  marriage,  tlie  appellee  applied  to  him  for  a  horse 
and  i)uggy  to  take  his  wife  to  the  railroad  depot,  saying  she  was 
going  to  Louisville;  and  a  third  witness  swore  that  appellee  lived 
with  the  woman  that  came  from  Iligginsport,  and  claimed  that 
she  wus  his  wife. 

The  circuit  judge  seems  to  have  been  of  the  oj)inion  that  an 
indictment  for  bigamy  could  not  be  maintained  without  proof 
of  the  fact  of  two  marriages,  cither  by  record  evidence  or  by  the 
testimony  of  one  or  more  witnesses  who  were  present  at  the  sol- 
emnization of  the  marriage  rites;  or,  in  other  words,  that  the 
declarations  and  conduct  of  the  defendant  admitting  his  marriage, 
and  living  with  and  recognizing  the  woman  as  his  wife,  were  not 
BiilHcient  to  warrant  the  jury  in  finding  a  verdict  against  him. 

This  is  a  subject  about  which  there  is  irreconcilable  conflict  in 
the  authorities.  In  llassachusetts,  Xew  York,  and  Connecticut, 
and  perhaps  in  some  other  states,  it  has  been  held  that  in  prose- 
cutions for  bigamy,  an  actual  marriage  of  the  i)risouer  must  be 


w 


f$  AMERICAN  CRIMINAL  REPORTS. 

proven,  and  tliat  neitlier  cohabitation,  re])utation,  nor  the  con- 
fessions of  the  prisoner  are  admissible  for  tliat  i)urposc,  or  if 
admissible,  are  not  of  themselves  sufficient  to  warrant  convic- 
tion, 77id  Cohunomvealth  v.  Litthjoh ii  and  BarJjarick,  J  5  ^lass., 
1G3;  B(modVsCai:>e,Q>  Conn., -liO;  21ie  Paqdo  v.  Jlniiiphrfy, 
7  Johns.,  314.  On  the  other  hand  it  has  been  held  iu  ISouth 
Carolina,  Virginia,  Georgia,  Alabama,  Ohio,  Pennsvlvania,  .Maine, 
and  Illinois,  that  in  prosecution.s  for  bigamy  the  coid'essions  of  the 
prisoner  deliberately  made  are  admissible  as  evidence  to  jirove 
marriage  in  fact,  and  in  some  of  those  states,  that  such  confes- 
sions are  of  themselves  sufficient  toantliurize  the  jury  to  convict. 
JJrition'fi  C'a^e,  i  McCord,  25(1;  T/ie  /State  v.  Jill  ton,  3  liich- 
ardson,  ■^?A\  Warner  v.  The  Coimnoiiicealth,  2  Virginia  Cases, 
92;  Covh  r.  The  State,  11  Ga.,  53;  Caiaeron  <jD  Cook  v.  The 
State,  14  Ala.,  510;  Wolverton  v.  The  State,  10  Ohio,  173;  Mur- 
tagh^s  Catie,  1  Ashmead,  272;  Forney  v  ILiUucher,  8  ISerg.  and 
liawle,  15'J;  CayfunTis  Case,  7  Greenl.,  57;  Harris^  C'tuse,  2 
Fairf.  (11  Me.),  3J>2;  St.de  v.  Hodykins,  11  Me.,  155;  Jackson 
V.  'The  People,  2  IScam.,  231. 

These  were  not  all  prosecutions  for  bigamy,  but  they  were  all 
cases  in  which  the  prosecution  could  only  be  made  out  by  proof 
of  a  marriage  in  fact,  and  the  same  principle  which  would  ad- 
mit evidence  of  the  admissions,  confessions,  or  conduct  of  the 
prisoner  in  such  of  them  as  were  not  for  bigamy,  would  also  au- 
thorize its  admission  in  ])rosecutions  for  tliat  crime. 

The  American  cases  in  which  it  has  been  held  that  evidence 
of  such  declarations,  confessions,  and  conduct  is  not  adniisbible, 
or,  if  admissible,  is  not  of  itself  sufficient  to  warrant  coiiviction, 
seem  to  rest  on  tlie  authority  of  Morris  v.  JIill..r,  JJurr,  2050, 
and  IJlrt  v.  Barloio.  Douglas,  171. 

These  were  actions  for  er'uii.  con.,  in  which  tlie  plaintill's  at- 
tempted to  establish  their  marriages  by  giving  in  evidiMice  their 
own  declarations,  and  proving  their  recognition  of,  and  cohabi- 
tation with,  the  women  alleged  to  be  their  wives. 

In  the  former  case.  Lord  Mansiield  said:  "There  must  l)e  evi- 
dence of  a  marriage  in  fact;  acknowledgment,  v.  e.,  acknowledg- 
ment of  the  husband  by  the  wife;  cohabitation,  and  reputation 
are  not  sufficient  in  this  action^  And  he  gives  liis  reasiHis  for 
60  holding.  "It  shall  not  depend,"  said  he,  "upon  the  mere 
reputation  of  a  marriage  which  arises  from  the  conduct  or  de- 


COMMONWEALTH  v.  JACKSON. 


7T 


clarations  of  \\\c  j^^aintiff  himself y  Again  lie  says:  "Xo  in- 
convenience can  possibly  arise  from  this  determination.  But 
inconvenience  mi<;lit  arise  from  a  contrary  decision  which  n\i<5ht 
render  ])ersons  liable  to  actions  founded  on  evidence  made  by  the 
persons  themselves  who  should  bring  the  actions."  And  twelve 
years  later,  in  deciding  the  case  of  li'ii't  v.  Barloiv,  he  gave  the 
same  reasons  for  a  like  decision. 

And  this  additional  reason  seems  to  us  to  be  entitled  to  con- 
siderable weight  in  support  of  tlie  rule  annotmcedby  Lord  Mans- 
iield  in  those  cases,  and  \)y  tliis  court  in  the  case  of  Klhhy  v. 
liucJcei',  1  A.  K.  Marsli.,  2!)0,  as  applicable  to  actions  for  o'lm. 
co)i.  In  such  cases  the  ])laintilt'  knows  when,  where,  and  by 
whom  he  was  married,  and  at  least  some  of  tlie  persons  who 
were  witnesses  of  tlie  fact,  and  generally  has  it  in  his  ])ower  to 
olVer  direct  and  positive  ])roof.  Jiut  the  case  is  often  (piite  other- 
wise with  the  government  in  ]>rosccutions  for  bigamy.  The 
prosecuting  officer  must  often  be  wholly  ignorant  of  the  time 
and  ]>lace  of  the  prisoner's  iirst  marriage,  of  the  names  and  resi- 
dence of  those  ])resent  at  its  consummation,  and  the  avenues  of 
information  will  generally  be  closed  to  him,  esj)ecially  when  the 
Iirst  marriage  to(»k  jilace,  as  it  is  generally  the  case  with  biga- 
mists, in  some  other  state  or  country.  Another  difficulty  in  the 
way  of  the  government  under  the  rule  that  the  Iirst  marriage 
must  be  established  by  record  evidence,  or  by  the  testimony  of 
one  or  more  witnesses  present  at  the  marriage,  and  which  does 
not  exist  in  actions  for  ci'ini,.  con.,  is,  that  the  government  can- 
not read  the  de[)ositions  of  witnesses,  and  may  be  unable  to  pro- 
cure the  attendance  of  those  residing  out  of  the  state,  while  the 
])laintiil'  in  ci'liii.  cou.  may  procure  and  read  depositions  to  prove 
tlie  fact  of  his  marriage. 

Hut  Lord  Manslield  did  ntjt  say  in  M-rri^  v.  M/I/i'i\  as  some 
have  suj)[»ose(l,  tliat  a  pris(Mier's  words  and  conduct  could  not  be 
given  in  evidiMice  agaiiu.t  him  to  prove,  in  a  ])rosecutiou  for 
l>igamy,  the  fact  of  his  having  been  previously  married,  or  that 
such  evidence  would  not  of  itself  authorize  a  conviction,  lie 
saiil,  it  is  true,  that  '*  in  %  pr>isecution  for  bigamy,  a  marriage  in 
fact  must  be  ]>rove(l;"  and  this  we  do  not  for  a  iiioiucnt  doubt 
is  now  and  has  always  been  the  law,  but  Lord  AEanslield  goes 
on  to  say:  "  We  do  not  at  }»resent  deline  what  may  or  may  not 
be  evidence  of  a  marriage  in  fact,"  and  thus  left  open  the  very 


V. 


kT^rai 


mm 


78 


AMERICAN  CRIMINAL  REPORTS. 


question  which  he  has  been  quoted  as  deciding,  whicli,  as  ulrciuly 
Btatcd,  Peeiiis  to  be  the  foundation  upon  which  the  American 
cases  rest,  wliicli  hold  that  direct  and  positive  proof  is  required. 
That  Lord  >[an.stiold  dM  not  mean  to  decide  that  a  marriage  in 
fact  could  not  l»e  proved  l)y  evidence  of  the  dechirations  und 
conduct  of  tlie  prisoiu^r  is  not  only  clear  fron>  the  case  in  which 
lie  has  been  suj)pose<l  ti»  have  made  that  decision,  but  is  further 
shown  l)y  his  decision  in  Afanj  NoruwoiVs  0((n<;  (1  East's  Cr. 
J^aw,  3371,  where  lie;  with  the  concurrence  of  Lord  ('liief  Justice 
Parker,  and  Justict-s  Smythe,  Jiathurst  and  ]'arrot,  determined 
that  seven  years'  coiiabitation  and  several  iidmissions  by  the 
prisoner  that  a  person  was  her  husban<l,  by  calling  him  by  that 
appelliition,  was  not  only  competent,  but  sufficient  evidence  to 
prove  a  iruirriage  in  fact. 

Mr.  Pliillii)s  in  his  work  on  Evidence  (vol.  2,  pp.  210-12),  in 
commenting  on  the  case  of  ^lorrin  v.  jnili'r,  says:  "  This  de- 
cision (loos  iKtt  warrant  the  conclusion  that  a  distinct  and  full 
acknowledgment  niiule  l)y  the  defendant  himseif  will  not  l)e  evi- 
dence of  the  fact  as  against  him,  and  suflicient  to  dispense  with 
more  form;i,l  and  strict  ])roof." 

Li  Trinitau\s  Citsi',  1  East,  470,  it  was  decided  that  his  con- 
viction of  iiigamy  obtained  \i\K>n  his  confession  of  marriage  was 
proper. 

In  Cook  V.  j7ic  Sttite,  Justice  Nesliit,  in  delivering  the  opinion 
of  the  supreu'.e  court  of  (ruorgia,  said:  "  Acknowli'dgmeiits,  co- 
habitation, repute,  etc.,  in  ordinary  civil  cases,  })rove  marriage; 
but  it  is  said  in  criminal  cases,  as  in  prosecutions  for  bigamy  and 
adultery,  a  marriage  in  fact  must  be  ])roved,  ....  and  that  the 
admissions  of  the  defendant  are  not  com[»etent.  As  a  general 
rule,  the  confessions  of  a  party,  freely  and  solemnly  made,  are 
the  liighest  evidence.  So  rea.sonable  and  well  settled  is  this  rule 
that  the  exceptions  to  it,  to  be  sustained,  ought  to  rest  ujxm  the 
most  unassailable  ground."  And  again  he  says  it  can  not  !>e 
presumed  that  the  ])risoner  made  confessions  conlraiy  to  the 
truth,  in  order  to  shield  himself  from  i)rosecution  for  adidterv, 
upon  the  assumption  that  he  was,  in  fact,  liviu"^  in  a  slate  of 
adultery.  "  Such  assumption  a  court  has  no  right  to  make;" 
and  we  may  add  that,  a  re([uest  conung  from  one  charged   with 


acqui 


it  1 


um  (it 


bigamy,  that  tlie  court  shall  assume,  in  order  to 

one  crime,  that  he  is  guilty  of  another,  and  has  likewise  imposed 


COMMONWEALTH  r.  JAOKSOX. 


79 


a  kept  mistress  upon  society  as  his  wife  by  falsely  representinj^ 
and  introducing  lior  us  sucli,  is  not  entitled  to  he  received  with 
any  favor. 

Mr.  Justice  White,  in  delivering  the  opinion  of  the  su]>rcine 
court  of  A'"irginia,  in  Wifnierv.  The  Couivhonviealth,9,w.i\'.  "  In 
all  criminal  prosecutions  as  well  as  civil  actions,  the  confessions 
of  a  ]>arty,  his  admissions,  aiid  acLs  amounting  to  confessions  or 
admissions,  are  not  only  admissible,  hut  often  the  strongest  evi- 
dence against  him,  and  not  unfrcquently  supply  the  ])lace  of  ev- 
idence of  a  higher  character  v»'hich  would  otherwise  ho  called 
for;''  and  this  is  e(|ually  true  in  a  ])rosecuti(>n  for  bigamy  as  in 
every  other  case.  Why  should  it  not  be?  Is  there  anything  in 
that  crime  or  in  its  punishment  which  ought  to  give  t(t  it  a  <lis- 
tiiict  code  of  the  law  of  evidence,  or  to  give  to  those  accused  of 
it  ]»rivileges  not  extended  to  those  accused  of  other  crimes!! 

^Ir.  (ireeideaf  says  (2  Cireenl.  on  Ev.,  sec.  41»):  "  Any  recog- 
nition of  a  person  standing  in  a  given  relation  toothers  \f,  prima, 
fdc'u-  evidence  against  the  })erson  nudcing  such  recognition  that 
such  relation  exists;  and  if  the  defendant  has  seriously  and 
solemnly  admitted  the  n\arriages,  it  will  be  received  as  suilicient 
proof  of  the  fact."  If  a  (h^fendant  indicted  for  adultery  can  be 
convicted  upon  evidence  of  his  adnussiou  that  the  woman  with 
whom  the  crime  was  committed  was  the  wife  of  another,  without 
anv  other  evidence  of  a  inarriaire  in  fact,  a  fortiori,  one  indicted 
for  bigamy  may  be  convicted  on  his  deliberate  admission  of  his 
own  marriage,  or  that  the  alleged  wife  was  s\icli  in  fact,  when 
that  admission  is  couplctl  with  evidence  of  recognition,  cohabi- 
tation, and  jtrovision  for  her  as  a  wife,  and  acknowledgment 
that  he  is  the  father  of  her  children. 

Again,  IMr.  (irreenlcaf  says,  the  marriage  of  onr  indicted  for 
bigamy  maybe  ])roved  "  by  the  deliberate  atlniission  of  the  j)ris- 
..iKT  himseif."     ((Jreenl.  Kv.,  vol.  :V  sec.  t.M4.) 

Mr.  ("liitty,  in  a  note  t«>  thetith'  "  Indictmr^it-i  r>«r  l>lgamy  or 
Pnlygaiiiy,"  says:  "  \\\y  cvinlenco  seems  to  K'  suthcient  \vhich 
will  couviiici'  the  jury  tliut  an  actual  nuirriagv  was  completi-d." 
(Chit.  Crim.  haw,  4T'J.) 

In  I'tijlnn  r.  Ijiton  (1  (^ar.  iVj  Kir.,  in.5>  it  was  held  that  on 
in<lictnu'nt  for  bigamy  or  :ulidf<  I'v.  the  prisoner's  <leliberate  (h*  - 
laration  that  he  was  nuirried  to  the  alleged,  wife  was  sufficient 
evidence  of  marriage. 


,    .,r   : 


80 


AMERICAN  CRIMIN'AL  REPORTS. 


«  fi 


From  this  notice  of  Eni,'lisli  and  American  iuitliorities  it  seems 
to  U8  tliat  neitlier  tlie  common  law  of  England,  as  adoi'ted  In  this 
country,  nor  the  American  comnKHi  law,  as  reco,i,niized  l»y  tiio 
courts  of  the  various  states,  recjuires  us  to  hold  one  ehari^'ed  with 
the  crime  of  hi<,'iimy  can  not  he  (!oiivicted  upon  clear  and  satis- 
factory  ])r(M.f  of  his  declarations  that  the  alle.ged  wife  is  le<,'ally 
such,  when  those  declarations  are  coupled  with  evidence  of  cohah- 
itation  with  her,  and  her  introducti(m  hy  him  into  a  commun- 
ity where  he  resides,  as  his  wife.  Wo  think  the  safety,  the  hap- 
piness, and  the  honor  of  i'amilies,  the  f,'ood  order  of  socii-ty,  the 
jtresfrvation  of  the  i»uhli«  morals,  and  a  due  reijjanl  to  pul)lic 
decency  and  individual  virtue,  dennind  that  the  rules  (»r  the  law 
should  furnish  every  facility  for  the  ])unishment  of  crimes  which 
a  projujr  rci,':ird  for  the  security  of  the  innocent  will  allow. 

It  is  (lidicult  to  ])erceive  any  reaw^i  f<.rdiscrimin!iting'l)etween 
admissions  to  ])rove  a  marriage  ami  other  facts  essential  to  con- 
stitute the  legal  guilt  of  the  accused;  there  can  l»e  no  more  dan- 
ffer  of  doinijr  ini'ustice  in  receiving  such  evidence  in  the  class  of 
cases  under  consideration  than  in  any  other.  AV^here  the  decla- 
rations of  tlie  ])risoner,  and  the  hwX  that  he  has  cohabitiMl  with 
the  woman  alli'ged  to  he  tiis  wife  are  alone  relied  u])on,  the  jury 
should  still  he  told  that  this  is  only  evidence  tending  to  prove  an 
actual  marriage,  and  that  it  is  for  them  to  decide  whether  the 
facts  proven  are  sutlicient  to  warrant  them  in  iinding  the  ])ris- 
oner  Avas  in  fact  married  to  the  alleged  wife,  and  nidess  they  so 
believe  they  should  ac(piit,  although  they  may  helievc;  he  rt-cog- 
nized  and  cohabited  with  her  as  his  wife.  This  will  place  the 
declarations  of  one  indicted  for  a  crime  in  which  the  ])roof  of 
actual  nnirriago  is  necessary  to  make  out  Ids  guilt  upon  the  samo 
legal  footing  with  those  charged  with  other  crimes,  and  will  not 
give  com])arative  immunity  to  this  detestable  crime  by  obstruct- 
ing the  path  of  the  ])rosecutor  with  a  ride  of  evidonce  v/hich  it 
id  believed  would  render  conviction  impos.':iI)le  in  a  large  iiiiijor- 
ity  of  such  cases  where  the  m(jral  evidence  of  guilt  isc()nclusive, 
and  where  a  conviction  could  bo  had  by  simply  :ij)idying  to  that 
class  of  cases  the  same  rules  of  evidence  applied  toother  crimes, 
subjecting  the  ollender  to  like  punishment. 

We  are  therefore  of  the  oi)iiuon  that  the  court  erred  in  crivinc 
to  the  jury  a  peremptory  instruction  to  find  the  appellee  not 
giulty. 


'i 

•t 

i 

LL..., 

McDADE  r.  TKOPLE. 


SI 


McDadk  rs.  Pkoi'le. 

(29  Mich.,  hO.) 

Ik'UMNci:    Statute  eoustnicil. 

In  a  stiitnh!  wliich  proviilcH  that  "every  iicrsoii  wlio  slmll  set  fin>  to  any  ImiKl- 
iii",',  ♦  *  or  to  iiiiy  otlitT  material  witli  intent  to  caune  any  Imililiiij^  to 
Ih'  linmed,  or  shall,  l>i/  (in;/  uthrr  lucaiifi,  attempt  to  cause  any  huildinj,'  to  lie 
bnnii'd,"  the  words  "liy  any  other  means  "  must  lie  eonstrued  to  mean  by 
any  other  ;neans  of  a  like  nature;  and  an  atteiiiiit  to  cause  a  liuildiu};  to 
be  burned  by  solicitiu},'  a  third  perHon  to  set  tire  to  it,  and  furnislung  him 
with  tilt,'  materials,  is  uot  within  the  statute. 

Cooi.iCY,  J.,  (iisseiilini' 

EuKoi:  to  Aljx'na  ('ircuit. 

Atkinson  tt?  IIoiHcij,  for  pliiintiil"  in  error, 

Byron  1).  Jiall,  Attorney  (Joneral,  for  the  j)CO])lc. 

Gkavks,  C.  J.  This  is  ii  writ  of  error  to  tlio  circuit  court  for 
tlie  county  of  Al])onii.  Tlie  phiintiil'  in  error  Wiis  convicted  und 
sentenced  to  tlie  state  ])rison  n])on  tlie  followino^  cluu'ijje,  as  em- 
iMulied  in  the  second  count  of  the  information  llled  against  hini 
l>y  the  prosecuting  attorney: 

"And  said  jirosecuting  attorney  further  gives  said  court  to 
understand  and  he  inforined  that  heretofore,  to  wit,  on  the  iirst 
(lay  of  ^lay,  in  the  year  of  our  I-ord  one  thousand  eiglit  hundred 
and  seventy-two,  at  the  city  of  Ali)er,a,  in  said  county,  Patrick 
^IcDade  did  wilfully,  feloniously  and  maliciously  sidicit  and 
invite  one  J'atrick  I'laney,  nnlawfully  and  fehmiously  to  set  fire 
to  and  hurn  a  certain  building,  to  wit,  the  warehouse  there  situ- 
ate of  Lorenzo  M.  . Mason,  Charles  E.  ]\[ason  and  nenjainin  F. 
iiUce,  and  di<l  then  and  there,  for  the  purpose  af(»resaid,  furnish 
said  Ulancy  with  a  large  quantity  of  oil,  to  v/it,  one  pint,  and 
a  large  ([uantity  of  matches,  to  wit,  ten  matches,  towards  the 
cdiniiiission  of  sai<l  oIltMise,  wheri'hy  and  hy  means  df  the  prem- 
ises, the  said  Patrick  ]\[cl)ade  did  attempt  to  cause  saiil  huilding 
to  he  hurned,  contrary  to  the  statute  in  such  case  made  a!Kl  pro- 
vided." 

It  was  claimed  in  the  court  below,  and  is  now  insisted  npoii 
here,  that  the  facts  set  forth  in  this  court  do  not  constitute  in 
law  an  indictable  oiFense.     The  charge  in  the  information  was 
framed  under  §  7557,  Conip.  L.,  which  reada  as  follows: 
Vol.  1.  —  6 


I  n 


82 


AMERICAN  CRIMINAL  REPORTS. 


"  Every  person  wlio  pIiuII  set  fire  to  any  iMiildini;  nienti(.ne(l 
in  tlie  iirt'oediiii,'  Ht'ctioiiH"  (and  a  warelionse  is  such  Imildin;?), 
«'or  to  any  other  material,  witli  intent  to  canso  any  Hndi  bnild- 
injr  to  be  Itnnied,  or  KJiall  by  any  other  nieaiiri  attempt  to  ca\iso 
any  buiidin.:,'  to  be  burned,  shull  be  punished  by  imprir^onnient  in 
the  state  jii-Lson  not  more  than  fifteen  years,  or  by  tine  not  cx- 
ceedinj^'  o!ie  tlnMiKand  dollars  and  imprisonment  in  the  county 
jail  not  more  than  one  year." 

On  rctiirninu;  to  the  information,  it  will  be  observed  that  the 
count  on  which  the  conviction  was  had  contains  no  averment 
that  JManey,  the  person  alle^'cd  to  have  been  solicited  to  commit 
the  act  of  h.ettin;L(  lire,  took  any  step  towards  the  execution  of 
that  act,  or  did  any  act  whatever  which  mi<jht  inculpate  the 
jilaintiif  in  error  as  accessory. 

The  diarize  in  the  informatitni  is  made  to  rest  entirely  at  last 
upon  Mc Dade's  conduct  in  soliciting  J'laney  to  burn  the  ware- 
lionse. The  atiditional  circumstance  introduced,  that  ho  also 
furnished  oil  and  matches,  is  not  such  an  one  as  can  bo  con;sid- 
crcd  an  essential  ingredient  of  the  substantive  oft'ense  intended 
to  be  set  forth.  The  a<ldition  of  this  fact  in  no  manner  helps  to 
fill  up  the  measure  ro(piired  by  the  statute,  and  the  charge  would 
be  as  valid  without  it  as  with  it.  Jf  the  provision  relied  on  will 
6uj)port  such  a  charge  as  that  actually  made,  it  would  C(jnally 
well  support  one  based  on  the  .solicitation,  ami  not  attended  by 
the  incidents  introduced  as  to  the  furnishing  of  oil  and  matches. 

The  questi<»n,  then,  is,  whether  this  law  will  warrant  a  charge 
based  on  solicitation.  It  is  a  well  s'^ttled  general  rule,  and  one 
especially  ajiplicable  in  the  interj>retation  of  statutes  which  de- 
fine crimes  and  regulate  their  ]>ui!ishnient,  that  general  words 
are  to  be  restrained  to  the  nnitter  with  which  the  act  is  dealinur, 
and  thiit  if  it  be  dealing  with  si)ecitic  things  or  ])articnlar  modes 
only,  the  general  words  must  be  limited  to  such  things  or  nuxles, 
cxcej)t  when  it  is  apparent  that  the  legislature  intended  by  the 
general  Avords  to  go  further.  Aiitfiiaiii  Ti'(iiit<port,<itloii  Com- 
jmnyv.  Moore,  5  Mich.,  3(;8;  Hdwliiiin  v.  Tho,  Great  Wcnteni 
IVij  Co.,  17  id.,  .57S;  Matte-  '■/  the  Tirhior  lutate,  13  id.,  44; 
PkllUps  V.  Poland,  L.  Ji.,  1  C.  P.,  204;  Hall  v.  The  State,  20 
Ohio,  7;  Daxjijett  v.  The  State,  4  Conn.,  CO;  Chegaray  v.  The 
Mayor,  3  Kerr,  220;  1  Bishop  Cr.  L.,  sec.  149;  Dwarris,  G21. 
This  rule  is  now  invoked  to  show  that  the  statute,  in  prescril). 


:\IcI)ADK  V.  I'WJl'LI']. 


S3 


'v\<^  wliat  slnniM  constitute  siii  iii(lic;tiil>lo  iittoiupt  to  ciiiiso  a 
Idiildiii;;  to  be  Imnied,  contemplated  the  employment  of  some 
])liyt^i('!d  means,  and  n(»t  merely  the  H(dieitin<,'  of  a  third  j)errtoii 
to  set  the  iire.  Tlie  counsel  for  the  ])IaiMtitr  in  errt>r  ar^^les  that 
the  previous  memi)ers  of  the  section  deal  with  the  physical  act 
of  Hrini,'  the  huiMin<,'  itself  or  id'  tiring  some  other  material  with 
the  intent  tliat  the  building,  as  a  C(»nse(iuence,  shall  be  burned, 
and  that  the  succeeding;  j^enenil  expression  counted  on  by  the 
])rose('iition,  "or  shall  by  any  other  means  attempt  to  cause  any 
biiildinij  to  be  burnt,"  must  bo  understood  as  intending  somo 
means  of  the  same  nature,  S(»me  physical  act,  either  personally 
by  the  party  himself,  or  through  another  directed   to  the  end 

6011.i,'llt. 

The  attorney  general  argues  that  the  first  and  s])ecitic  ])(»rtion 
of  the  section  covers  every  possible  dire(!t  aiul  indirect  mode  of 
atteni]>t  to  cause  a  building  to  be  burnt,  excei)ting  an  attempt 
consummated  by  solicitation,  and  that  therefore,  in  order  to  give 
the  general  clause  in  the  latter  ])art  of  the  section  any  meaning 
and  operation,  it  is  indispensable  to  read  it  as  explicitly  ai)plying 
to  the  single  fact  of  nndicious  solicitation  to  burn. 

AVithout  ])ausing  t(t  adduce  illustration  to  impugn  this  posi- 
tion of  the  ])rosecution,  tonchi'ig  the  sco])e  of  the  specilic  i)ro- 
visions,  it  is  sntlicient  to  say  tluit  it  cannot  be  maintainetl  that 
tJie  particular  clauses  in  the  first  part  of  the  section  include  every 
possible  mixle,  other  than  that  consisting  of  ])ersoinvl  solicitation 
in  which  a  person  may  set  about  the  burning  of  a  building, 

Tli(!  application  of  means  directly  to  the  building,  and  the  ap- 
})lication  of  means  directly  to  some  other  material,  certainly  do 
not  exhaust  the  jjhysical  agencies  which  aro  possible  in  attem])t3 
to  cause  buildings  to  be  burnt.  l>oth  branches  of  the  jiassagc 
]ii('ceding  the  general  clause  relate,  ami  are  confined,  to  cases 
where  lins  is  actually  set,  and  it  needs  no  nice  reasoning  to  show 
that  a  i>ersnn  may  fall  short  of  his  object,  and  employ  physical 
means  of  the  same  nature  and  in  the  same  direction,  in  attem})t- 
iiig  to  cause  the  buriung.  The  argument,  then,  against  the  posi- 
tion of  the  ])laintifl' in  error,  fails. 

Passing  this  topic,  wo  come  to  other  views  which  deserve 
notice. 

The  specific  ])rovisions  of  the  section  expressly  refer  to  the 
kind  of  buildings  mcutionod  in  preceding  sections,  while  the 


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23  WiST  MAIN  STRIfT 

VVnSTIR,N.Y.  MSSO 

(716)l72-4503 


84 


AMERICAN  CRIMINAL  REPORTS. 


general  clause  which  follows  uses  the  general  expression,  "  any 
building,"  and  therefore  does  not,  like  the  earlier  definite  clause, 
distinctly  and  expressly  confine  itself  to  a  special  and  determin- 
ate class  of  buildings.  Xow  we  cannot  suppose  the  legislature 
meant,  by  this  general  phrase,  to  go  beyond  the  objects  intended 
to  bo  protected  by  the  earlier  and  definite  provisions,  and  make 
an  attempt  to  cause  '"any  building"  to  be  burnt,  whatever  its 
value  or  character  or  use,  an  oft'ense  liable  to  be  punished  by  im- 
prisonment in  the  state  prison  for  fifteen  years.  It  is  very  obvi- 
ous that  this  expression,  "any  building,"  should  be  limited,  and 
read  as  agreeing  with  the  specification  immediately  preceding, 
namely:  "any  building  mentioned  in  the  i^receding  sectior.s." 

We  find,  then,  that  in  one  respect,  at  least,  this  general  clause 
must  submit  to  limitation;  and  that  the  legislature  must  have 
intended  that  it  should  be  construed,  in  so  far,  at  any  rate,  in 
subjection  to  the  rule  before  quoted.  In  framing  this  portion 
of  the  law,  we  must  accordingly  conclude  the  legislature  were 
not  minded  to  employ  terms  which,  by  themselves  and  apart 
from  precedent  matter,  were  suited  to  exactly  express  the  sense 
intended.  On  the  contrary,  they  were  satisfied  in  using  general 
expressions,  which  would  be  liquidated  by  judicial  exposition, 
according  to  the  established  rules  of  interpretation  and  con- 
struction. 

This  circumstance  is  not  without  its  influence,  when  we  are 
seeking  what  the  legislature  expected  from  judicial  consideration. 
Eecurring  to  the  view  presented  by  the  attorney  general,  it  will 
be  perceived  to  have  a  bearing  not  as  yet  noticed.  According  to 
his  construction  of  this  general  clause,  it  could  oidy  apply,  and 
hence  Avas  intended  only  to  apply,  to  an  attempt  by  solictltation. 
Xow  the  language  found  in  tlie  act  is  very  inappropriate  for  such 
a  purpose,  and  it  seems  scarcely  possible  to  suppose  that  if  the 
legislature  had  meant  to  reach  "  solicitation,"  and  that  only,  it 
would  have  chosen,  in  order  to  efi'ectuate  their  object,  the  phrase, 
"  any  other  means." 

The  more  reasonable  conclusion  is  altogether  at  variance  with 
the  view  of  the  prosecution,  and  in  substantial  accordance  with 
tliat  of  the  plaintiff  in  error.  If  the  object  of  the  legislature  had 
been  as  claimed  by  the  prosecution,  it  would  have  been  inani- 
fested  in  the  use  of  suitable  and  explicit  terms.  Such  terms 
were  familiar,  and  a  resort  to  them  would  not  have  multiplied 


McDADE  V.  PEOPLE. 


85 


words.  In  other  cases,  when  procurement  or  solicitation  have 
been  conteniphited  as  the  things  to  be  forbidden  and  made  crim- 
inal, the  legislature  have  employed  terms  plainly  adapted  to  de- 
note the  purpose,  and  very  ditterent  from  the  expression  used  in 
this  law.    Comp.  L.,  §§  7772,  7803,  7804. 

On  the  whole,  it  is  deemed  to  be  very  clear  that  in  using  this 
phrase,  "  any  other  means,"  the  legislature  did  not  have  it  in 
mind  and  did  not  design  to  denote  and  identify  a  mere  invitation 
to  burn;  and  looking  at  the  enactment  in  connection  with  the 
provisions  associated  with  it,  and  considering  the  subject  matter 
and  general  spirit,  and  the  recognized  rule  of  interpretation 
already  noticed,  I  think  we  are  under  the  necessity  of  holding 
that  this  statute  was  intended  to  require  some  physical  fact,  even 
in  cases  marked  by  express  'ivitation,  and  cannot  be  satisfied 
without  some  such  act  committed  in  person  or  through  another, 
reaching  far  enough  to  amount  to  the  commencement  of  the 
causation.  Reglna  v.  Williams,  1  Den.  C.  C,  39;  Iteyiiia  v. 
Ecujlcton,  33  E.  L.  &  E.,  5i0. 

The  "  attempt  to  cause  "  must  be  by  some  act  of  the  same  gen- 
eral nature  as  the  acts  l)efore  mentioned;  that  is,  some  physical 
^.ct,  and  sufficiently  proximate  to  the  result  to  be  caused,  as  to 
stand  either  as  the  first  or  some  subse(picnt  step  in  the  actual  en- 
deavor to  really  bring  about  or  accomplish  sucli  result.  It  must 
amount  to  something  more  than  a  prei)aration  for  an  attempt  to 
cause.  TIio  specific  provisions  in  the  fore  jjart  of  the  section  ve- 
cpiire  a  physical  act  of  causation  very  near  to  the  eflbct,  and  I 
can  discover  no  ground  in  the  subject  or  in  the  arrangement  or 
phraseology  for  exempting  the  general  clause  from  the  rule  of 
law  before  stated,  by  which  generals  are  subordinated  by  the  sense 
of  preceding  and  connected  particulars.  If  coi'rcct  in  this,  it 
follows  that  the  count  on  which  the  conviction  was  allowed 
alleged  no  crime  in  law,  and  that  the  judgment  and  verdict  must 
be  set  aside,  and  the  plaintitt'in  error  be  discharged  from  further 
prosecution  on  this  information. 

CiVMrBKLL,  J.,  concurred. 


CooLEY,  J.  I  have  not  been  able  to  concur  in  the  view  taken 
by  my  brethren  of  the  statute  under  which  the  information  was 
filed.  The  statutes  provide  for  the  punishment  of  "  every  person 
who  shall  set  fire  to  any  building  mentioned  in  the  preceding 


iiii 


,  i 


86 


AMEEICAN  CRIMINAL  REPORTS. 


sections,  or  to  any  other  material,  with  intent  to  cause  any  &nch 
bnilding  to  be  burned,  or  shall  by  any  other  meaiis  attempt  to 
cause  any  building  to  be  biirned;  "  that  is  to  say,  it  provides  for 
the  punishment  of  every  person  who  shall  himself  set  a  iire  with 
the  intent  specified,  or,  on  the  other  hand,  as  I  understand  it, 
shall  make  the  same  attempt  by  any  other  means  whatsoever. 
Instead  of  discovering  in  this  statute  an  intent  that  its  operation 
sliall  be  confined  to  cases  in  which  tlie  accused  party  has  resorted 
to  physical  means  to  originate  the  lire  himself,  it  seems  to  me 
that  the  purpose  is  manifest  to  make  its  scope  as  general  as  pos- 
sible, and  it  cannot  be  denied  that,  in  this  case,  if  the  facts 
charged  in  the  information  are  true,  the  prisoner  did  resort  to 
means  to  cause  the  building  to  be  burned.  But  even  on  the  view 
of  the  statute  taken  by  my  brethren,  I  should  think  the  ca,se 
within  it.  Furnishing  a  confederate  with  combustibles  to  begin 
a  fire  with,  is  as  much  a  resort  to  physical  means  for  the  purpose, 
as  would  be  the  planting  of  a  torpedo  with  one's  own  hands,  with 
the  intent  that  it  shall  explode  and  cause  a  fire. 

CnEiSTiANCV,  J.,  did  not  sit  in  this  case. 


! 

[i  i 

n 

■ 

H 

Delakey  vs.  State. 

(41  Tex.,  601.) 

Abson  :    Motion  for  new  trial — Burning  jail  to  escape. 

A  prisoner  who  bums  a  hole  in  the  floor  of  the  lock-up  for  the  purijose  of  mak- 
ing liis  escape  through  tlie  hole  so  made  is  not  guilty  of  ai"son. 

It  seems,  that  if  he  had  set  fii'e  to  the  building  intending  to  burn  it  np  and  make 
liis  escape  in  the  confusion  attendant  on  the  burning  of  the  building,  he 
would  be  guilty  of  arson. 

AflBdavit  of  co-defendant,  against  whom  there  is  sti-ong  evidence,  is  not  sufficient 
on  a  motion  for  a  new  trial  on  the  ground  of  newly  discovered  evidence. 

Mike  Delaney  was  tried  at  the  February  term,  1874,  of  the 
district  court  of  Fannin  county,  on  an  indictment  charging  him, 
jointly  with  John  Whaley,  with  the  wilful  burning  of  a  cala- 
boose used  for  confining  prisoners  in  the  city  of  Bonham.  Late 
in  the  evening  of  the  17th  of  March,  lS7i,  Delaney  and  AVhaley 
were  arrested  for  drunkenness,  and  confined  in  the  calaboose  in 


See  Jenkins  v.  State,  53  Ga.,  33,  in  which  it  is  held  that  burning  of  jail  to  escape 
is  not  arson. 


DELANEY  t-.  STATE. 


m 


Bonliam  during  the  following  night.  Soon  after  being  impris- 
oned, Dclanej,  still  drunk,  swore  that  he  would  burn  up  the  town 
of  Bonham  before  the  next  Tuesday  night.  Late  in  the  night 
of  17th  March  the  cries  of  defendant  were  heard  calling  for  wa- 
ter to  extinguish  fire.  A  fira  had  been  kindled  on  the  fioor  with 
the  otaves  of  a  bucket,  and  the  floor  burned  through.  Water  was 
handed  to  defendant  through  the  grates  of  the  prison,  with  which 
he  extinguished  the  fire. 

No  witnesses  were  introduced  for  the  defense.  The  judge,  af- 
ter copying  in  his  charge  the  statutory  definition  of  arson,  and 
informing  the  jury  that  a  calaboose  was  a  public  building,  in- 
structed it  further,  as  follows:  "  On  the  trial  of  a  criminal  ac- 
tion, when  the  facts  have  been  proved  that  constitute  the  offense, 
it  devolves  on  the  accused  to  establish  the  facts  or  circumstances 
on  which  he  relies  to  excuse  or  justify  the  prohibited  actor  omis- 
sion. Drunkenness  is  no  excuse  for  crime.  A  man  is  always 
presumed  to  intend  the  natural  consequences  of  his  own  act,  and 
if  you  have  a  reasonable  doubt  arising  from  the  evidence  that  this 
defendant  did  not  wilfully  set  fire  to  tlio  calaboose,  or  if  he  did 
not  aid  in  doing  so,  you  will  find  him  not  guilty;  but  if  you  be- 
lieve that  he  did  wilfully  set  fire  to  it,  or  aid  in  doing  so,  you 
will  find  him  guilty  as  before  charged." 

"Verdict  of  guilty,  and  punishment  assessed  at  five  years  in  the 
penitentiary. 

There  was  a  motion  for  new  trial,  supported  by  the  affidavit  of 
the  co-defendant  AVlialey,  to  the  effect  that  the  fire  was  accident- 
ally communicated  to  the  floor  from  a  pipe  which  one  of  the 
prisoners  had  been  smoking.  Motion  overruled,  and  defendant 
appealed. 

Xo  briefs  for  appellant  have  reached  reporters. 

George  Clark,  Attorney  General,  for  the  state. 

Roberts,  C.  J.  We  do  not  think  the  court  erred  in  admittinj; 
the  threats  of  defendant,  "  that  he  would  burn  up  the  calaboose 
.and  town  of  Boiduim  before  the  next  Tuesday  night,"  while  he 
was  imprisoned.  It  does  not  stand  on  the  same  ground  of  con- 
fession of  having  previously  committed  an  otl'ense  made  after  and 
during  his  imprisonment.  Nor  do  we  think  the  aftidavit  of  his 
co-defendant,  tliat  the  burning  was  accidental,  was  a  good  ground 
for  a  new  trial,  as  presented  in  defendant's  motion,  because  the 


j!  Wi|l 


88 


AMERICAN  CRIMINAL  REPORTS. 


I     > 


r;  :! 


facts  developed  on  the  trial  did  not  show  that  there  was  no  evi- 
dence against  his  co-defendant  Wlialey.  It  was  nearly  as  strong 
against  one  of  theiii  as  against  the  other,  the  threat  made  by 
the  defendant  on  the  previous  evening  being  the  only  ditferenee. 
The  only  other  ground  in  tlie  motion  for  a  new  trial  was  that  the 
verdict  was  contrary  to  the  law  and  evidence.  Arson  is  the  wil- 
ful burning  of  a  house.  The  house  need  not  be  consumed  with 
iire  to  constitute  the  offense.  It  will  be  sufficient  to  show  that 
a  person  set  fire  to  the  house,  to  the  extent  that  some  part  of  the 
house  was  on  fire,  nnless  it  is  made  clearly  to  appear  that  it  was 
accidental,  or  was  for  some  other  object  wholly  ditterent  from  the 
intention  to  burn  up  or  consume  the  house,  f,  for  instance,  it  ap- 
pears from  the  evidence  that  aperson  confined  in  prison  set  tire  to 
the  door  to  burn  oft'  the  lock  so  as  to  make  his  escape,  or  that  he 
burned  a  hole  in  the  floor  or  in  the  wall  for  the  same  purpose,  it 
would  not  be  arson.  So  it  has  been  held  by  the  courts  of  other 
states.  The  Peoj)le  v.  Cotteral  et  al.,  18  Johns.,  115;  The  State 
V.  Mitchell,  5  Ired.,  350. 

If,  however,  a  prisoner,  or  a  number  of  prisoners  in  concert, 
should  set  fire  to  a  jail  without  such  definite  purpose,  but  for  the 
purpose  of  burning  the  jail  sufliciently  to  produce  the  alarm  of 
fire,  and  in  the  consequent  confusion  make  an  escape,  being  at 
the  same  time  indift'erent  as  to  whether  the  jail  was  consn-ned  or 
not,  that  would  be  arson. 

In  this  case  the  evidence  is  circumstantial.  There  is  no  direct 
evidence  that  both  or  either  of  the  two  prisoners  set  fire  to  the 
calaboose,  and  the  circumstauc-es  tended  very  strongly  to  show 
that  thoy  were  endeavoring  to  burn  a  hole  in  the  floor,  so  as  to 
make  their  escape  thr-^ugh  it.  The  fire  must  have  been  burning 
for  some  time,  perhaps  several  hours  before  daylight.  It  is  not 
reasonable  to  suppose,  considering  the  trivial  importance  of 
their  oft'ense,  as  indicated  by  their  fines  next  day,  after  they  were 
put  in  drunk,  that  they  were  desperate  enough  to  intend  to  burn 
up  the  calaboose  during  the  night,  with  themselves  in  it.  AVhen 
they  gave  the  alarm  of  fire,  about  daylight,  they  did  not  act  like 
persons  who  had  set  fire  to  the  house  to  produce  general  alarm 
and  escape  in  the  confusion.  Had  that  been  their  design,  we 
should  have  reasonably  expected  that  they  would  have  waited 
until  the  fire  had  taken  greater  effect,  and  then,  upon  giving 
alarm,  have  let  others  rush  into  the  calaboose  to  extinguish  the 


DELANEY  v.  STATE. 


89 


fire,  witli  the  hope  of  there  having  been  a  chance  to  rush  out. 
Instead  of  that,  defendant  called  fur  water  the  first  thing,  and  it 
being  handed  to  him  through  the  grated  window,  he  put  out  the 
fire  liiniself  a  the  inside,  and  another  person,  crawling  under 
tlie  calaboose,  put  it  out  on  the  under  side  of  the  lloor;  so  that 
tlie  fire  was  entirely  extinguished,  and  the  prisoners  were  .-till  in 
prison,  when  the  marslud  of  the  town  came  witli  the  key,  un- 
locked the  door,  went  in  and  examiiied  the  premises  in  reference 
to  the  burning.  There  is  not  the  least  intimation  on  the  part  of 
any  of  the  witnesses  that  they  made  any  effort  to  escape.  The 
marshal  does  not  even  state  that  he  summoned  a  guard  when  he 
took  them  before  the  mayor,  where  they  were  each  fined  two 
dollars  and  fifty  cents  and  discharged.  The  whole  trial  of  the 
case  seems  to  have  proceeded  upon  a  view  of  the  law,  that  if  the 
defendant  did  wilfully  set  fire  to  tiic  calaboose,  he  was  guilty  of 
arson,  whatever  might  have  been  his  intention  in  doing  it.  The 
jury  was  instructed  that:  "  On  the  trial  of  a  criminal  action, 
when  the  facts  have  been  proved  which  constitute  the  offense,  it 
devolves  on  the  accused  to  establish  the  facts  or  circumstances 
on  which  he  relies  to  excuse  or  justify  the  prohibited  act  or 
omission."  This  charge  in  this  shape,  though  its  meaning  may 
be  well  understood  by  a  lawyer,  may  sometimes  be  well  calcu- 
lated to  mislead  a  jury.  The  facts  or  circumstances  of  excuse 
may  have  been  already  shown  by  the  evidence  for  the  prosecution, 
and  then  it  would  not  devolve  on  the  defendant  to  show  them. 
So  in  this  case,  all  the  witnesses  that  knew  anything  about  the 
transaction  had  been  examined  by  the  state.  The  defendant  had 
no  means  of  showing  anything  more,  as  he  could  nut  put  his  co- 
uerendant  on  the  stand  as  a  witness.  The  jury  might  have  been 
correctly  told  that  it  devolved  on  defendant  to  show  such  facts, 
unless  they  appeared  in  the  evidence  of  the  prosecution,  and 
then  their  minds  would  have  l)een  directeu  to  the  facts  in  proof, 
and  not  have  been  left  to  the  possible  conclusion  that,  as  the  defend- 
ant had  introduced  no  evidence  on  his  part,  there  was  none  fa- 
vorable to  him  before  them  already  for  their  consideration. 

Another  objection  to  this  charge  in  reference  to  this  case  is, 
that  it  did  not  indicate  to  the  jury  what  facts,  would  be  an 
excuse  for  wilfully  setting  fire  to  the  calaboose,  or,  indeed,  that 
there  could  possibly  be  any  such  facts.  It  is  true  that  it  was  not 
incumbent  on  the  court  to  indicate  any  such  facts,  if  the  evi- 


■  fi 


"i  r 

1 

n 

■  i 

1 

•  i 

li 


i    ■  .1 


90 


AMERICAN  CRIMINAL  REPORTS. 


dence  did  not  point  to  them.  For  instance,  it  was  not  required 
that  the  court  should  have  told  the  jury  that  if  they  believed  the 
defendant,  ui)uu  recovering  from  his  drunken  spell,  was  about  to 
freeze,  and  built  a  little  tire  with  the  staves  and  hoo])S  of  the 
bucket  on  the  floor  to  avoid  that  calamity,  and  did  not  design  to 
burn  the  building  to  any  dangerous  extent,  under  the  reasonable 
expectation  of  being  able  to  control  the  fire,  that  would  excuse 
him  from  the  criminality  of  arson  because  there  was  no  evidence 
that  it  was  then  cold,  and  no  other  evidence,  tending  to  establish 
such  a  conclusion.  But  there  was  evidence  teiiding  to  show  that 
if  the  defendant  wilfully  set  Are  to  the  floor  at  all,  it  was  done 
to  burn  a  hole  through  it  to  make  his  escape.  And  the  charge 
should,  therefore,  have  indicated  that  as  a  fact,  which,  if  they 
believed  it  to  be  true  from  the  evidence,  would  be  an  excuse  suf- 
ficient to  relieve  him  from  the  charge  of  arson. 

In  reference  to  the  facts  in  the  evidence,  all  being  circumstan- 
tial, the  matters  to  be  considered  in  coming  to  a  conclusion  were, 
that  the  floor  of  the  calaboose  was  certainly  on  fire,  and  a  small 
hole  had  been  burned  through  it.  The  staves  of  the  bucket  were 
found  partially  burned,  with  the  burnt  ends  towards  and  near 
the  fire.  Some  coals  were  found  under  the  floor,  with  some 
chips  and  shavings  near  them.  There  was  no  water  left  in  the 
calaboose.  The  two  prisoners  had  been  put  in  while  drunk  on 
the  evening  previous,  most  probably  only  because  they  were 
drunk,  and  oue  of  them  noisy. 

Under  a  view  of  all  these  circumstances,  the  questions  present- 
ing themselves  were  (as  no  one  saw  the  thing  done  who  can  give 
evidence,  if  anyone  did  see  it),  "Was  the  flre  accidental,  or  was  it 
set  on  purpose?  If  on  purpose,  was  it  done  by  deiendant,  or  his 
co-defendant,  in  the  building,  or  by  some  one  under  it?  If  done 
by  some  one  in  the  building,  was  it  done  by  both  or  by  one,  and 
which  one?  If  defendant  was  implicated  in  purposely  doin*'  it, 
was  it  done  to  consume  the  building  with  fire,  or  to  make  a  hole 
to  get  out,  or  was  it  done  with  a  reckless  disregard  as  to  whether 
the  building  was  consumed  with  fire  or  not,  and  for  the  purpose 
of  producing  alarm  and  confusion  to  facilitate  their  escape? 

That  the  burning  was  done  by  the  defendant,  was  a  material 
fact  to  be  found  by  the  jury,  and  which  was  not  to  be  taken  for 
granted  simply  from  the  fact  that  he  could  have  done  it.  If  they 
had  been  satisfied  of  that  fact,  beyond  a  reasonable  doubt,  from 


iiii 


MEISTER  V.  PEOPLE. 


91 


a  consideriition  of  all  the  evidence,  then  they  inij^ht  have  pre- 
sumed tliat  it  was  a  wilful  burning,  if  there  was  not  enough 
evidence  to  satisfy  theni  that  it  was  not  wilful,  but  was  only 
accidental,  or  done  for  the  purpose  only  of  making  a  hole  in  the 
floor  throiigh  which  to  escape.  (As  to  accidental  or  negligent 
hnrning,  see  Iluss.  on  Crimes,  549;  Whart.  Cr.  Law,  sec.  lG(i3.) 

In  New  York,  the  statute  makes  arson  the  "  wilful  burning," 
etc.,  as  in  this  state. 

In  North  Carolina,  the  statute  makes  arson  the  "wilful  and 
malicious  burning,"  etc.,  as  at  common  law. 

In  both  of  those  states  it  has  been  held,  in  well  considered 
cases,  that  where  it  appeared  reasonably  certain,  from  all  the 
facts  and  circumstances  in  evidence,  that  the  purpose  of  the  pris- 
oner in  jail  in  setting  fire  to  it  was  only  and  solely  to  burn  the 
lock  off  of  the  door  (in  one  c  :e),  or  to  burn  a  small  hole  (in  the 
other  case)  to  enable  him  to  make  his  escape,  it  would  not  be 
the  wilful  burning  of  the  house  as  contemplated  by  the  law  of 
arson.  They  both  also  held  that  if  defendant  set  fire  to  the  house, 
lie  would  l«e  guilty  of  arson,  unless  it  did  clearly,  appear  that  his 
intention  in  doing  it  was  only  to  so  burn  it  (as  above  stated)  as 
to  make  his  esca])e.  Peojple  v.  Cotteral  et  al.,  18  Johns.,  115; 
T/ie  State  v.  Mitchell,  5  Ired.,  350. 

Concurring  in  this  view  of  th.rs  law,  we  are  of  the  opinion  that 
the  court  failed  to  charge  the  law  of  the  case  as  it  was  required 
to  be  dojie  by  facts  in  evidence,  for  wliich  error  the  judgment  is 
reversed  and  cause  remanded. 

Jieversed  and  rematxded. 


:v    ,<.rf 


■S'^:' 


-^  -1 


Meistkr  vs.  People.* 

(31  Mich.,  99.) 

Abson:  ri'osecution  hy  private  counsel'^Biinihig  insured  property — Evidence  — 

Statute  construed. 

Counsel  employed  iind  paid  by  private  paities  will  not  be  allowed  to  prosecute 

*  Tlie  statute  on  which  tlie  information  in  tliis  case  was  based,  reads  as  follows : 
"  Everj-  person  who  shall  wilfully  bum  any  building,  or  any  goods,  wares,  or  mer- 
chandise, or  other  chattels,  which  shall  be  at  the  time  insured  against  loss  or 
damage  by  fire,  or  shall  ^vilfully  cause  or  procure  the  same  to  be  burned,  with  ui- 
tent  to  injure  the  insurer,  whether  such  person  be  the  owner  of  the  property  or 
not,  shall  be  punished  by  imprisonment  in  tiie  state  prison  not  more  than  ten 
yeai-s."    2  Mich.  Conip.  Laws  1871,  sec.  7500. 


I:  -.r -i1 


92 


AMERICAN  CRIMINAL  REPORTS. 


!» 


in  a  criminal  ease,  a^'ainst  the  olyection  of  the  respondent,  especially  where 

the  private  party  Inw  a  pecuniary  interest  in  the  conviction  of  the  luicused. 
Pivliniinary  examinations  on  charf,'es  of  felony  may  bo  conducted  by  counsel 

employcil  and  paid  by  private  parties. 
In  a  prosixiution  for  burning  insured  property  with  intent  to  defraud  insurers, 

an  actual  valid  insurance  nmst  be  proved. 
In  a  prosecution  tor  burning  insured  property,  evidence  that  a  month  before  the 

fire  the  di-fendant  wanted  a  witness  to  bum  the  property  is  admissible. 
Guilty  knowledge  may  be  proved  by  circumstantial  evidence,  as  well  as  any 

other  tact. 
Under  a  statute  punisliing  those  who  birni  insured  property,  and  those  who 

cause  or  i>rocure  it  to  be  burned,  the  defendant  who  is  charged  with  burning 

tlie  i)roperty  cannot  be  convicted  on  proof  that  he  procured  the  building  to 

be  bumed  while  he  himself  was  absent.    Burning  and  procuring  to  bo 

burned  iU'e  different  offenses  imder  tlie  statute. 

EuuoK  to  Saginmo  Circuit. 

Gai/Iord  t&  llanchett,  for  plaintiiF  in  error. 

Wwner  dc  Draper,  for  the  people. 


Cami'hki-l,  J.  The  respondents  below  were  all  tried  and  con- 
victed of  the  offense  of  bnrning  certain  insured  property,  in  the 
city  of  Saginaw,  on  the  22d  day  of  June,  1S73,  with  intent  to 
defraud  certain  insurance  companies  named  in  the  information. 
There  was  no  evidence  to  coimect  Leizer  Mcister  or  William 
JMeister  with  the  burning,  as  principals  present  at  the  fact.  The 
case  proceeded  throughout  on  the  claim  that  Eosa  IMeister,  the 
wife,  and  Bertha  Meister,  the  sister  of  William  Meister,  who  oc- 
cupied the  premises,  set  the  property  on  fire  in  the  absence  of 
the  others;  and  that  William  and  his  father  Leizer,  who  lived  at 
some  distance  off,  procured  the  burning. 

At  the  opening  of  tlie  trial,  an  objection  was  made  that  coun- 
sel had  been  retained  by  private  prosecutors,  and  at  their  expense, 
to  aid  in  conducting  the  prosecution.  Defendants  offered  to 
show  this  fact,  and  asked  to  have  one  of  the  assisting  counsel 
sworn,  who  declined  to  be  sworn,  and  the  court  refused  to  require 
him;  and  the  prosecuting  attorney  stating  the  gentlemen  referred 
to  were  acting  at  his  re(iuest,  the  court  permitted  them  to  assist, 
and  overruled  the  objection.  This  question  has  never  been  pre- 
sented to  the  court  before.  Under  the  English  practice,  prose- 
cutions by  private  parties  have  been  the  rule  rather  than  the 
exception,  and  there  is  no  public  prosecutor  who  has  general 
charge  of  criminal  business.    The  necessity  of  such  an  officer 


of  the  pi 
the  com 
counsel 
ity.     V 
Com.  V. 

The 
whether 
the  assei 
tions  ap 
ence  to 

It  hasi 
neys  to 
have  ha( 


MEISTER  V.  PEOPLE. 


93 


lias  been  urged  repeatedly  by  many  of  the  ablest  jurists;  and  tlio 
chief  reason  suggested  has  been  the  abuse  of  criminal  proceed- 
ini-s  for  ])rivate  ends,  and  the  subordination  of  public  justice  to 
private  control.     In  this  country  we  have  usually  had  in  every 
Btate  some  officer,  or  class  of  officers,  a]:»pointed  for  the  express 
purpose  of  managing  criminal  business;  but  the  extent  and  na- 
ture of  their  powers  and  duties  have  not  been  uniform.     Some- 
times the  officers  have  been  permanent,  and  sometimes  counsel 
have  been  appointed  by  the  courts  to  act  for  the  term;  and  the 
duties  have  often  been  left  under  vague  regulations.     Under  our 
territorial  statutes,  and  until  the  Kevised  Statutes  of  1S3S,  the 
legislation  was  not  very  specific.     But  by  the  Revised  Statutes  of 
1838,  a  regulation  was  introduced  that  was  borrowed  from  the 
laws  of  Alassachusetts,  and  that  has  been  preserved  ever  since. 
The  prosecuting  attorney  of  each  county  is  required  to  prosecute 
all  criminal  cases  in  the  courts  of  his  county,  and  may  be  required 
also  to  appear  for  the  same  purpose  before  any  magistrate,  ex- 
cept in  certain  municipal  courts.     And  he  is  expressly  debarred 
from  receiving  any  fee  or  reward  from  any  private  person  for 
any  services  within  his  official  business,  and  from  being  retained, 
except  for  the  public,  in  any  civil  action  depending  on  the  same 
state  of  facts  on  which  a  criminal  prosecution  shall  depend.     C. 
L.,  §§  529,  530,  534. 

The  courts  may  appoint  counsel  to  act  in  his  place  when  he  is 
absent  or  unable  to  perform  his  duties,  or  where  the  office  is 
vacant;  but  no  other  power  of  appointment  is  given.  Any 
recognition  of  other  counsel,  if  valid,  can  only  be  by  the  request 
of  the  prosecuting  attorney.  He  cannot  abdicate  his  duties,  and 
the  court  cannot  divide  or  relieve  them,  or  give  to  any  other 
counsel  any  authortiy  whatever,  independent  of  his  res])onsibil- 
ity.  U.  S.  V.  Morris,  1  Paine,  209;  Ilite  v.  State,  9  Yerg.,  198; 
Com.  V.  Knapp,  10  Pick.,  477;  Com.  v.  Williams,  2  Cush.,  582. 

The  question,  therefore,  seems  to  narrow  itself  to  the  inquiry, 
whether  or  not  the  persons  allowed  to  act  at  the  request  or  by 
the  assent  of  the  prosecuting  attorney  are  subject  to  any  restric- 
tions applicable  to  him,  or  whether  they  may  act  without  refer- 
ence to  their  relations  to  private  parties. 

It  has  been  quite  common  in  this  state  for  prosecuting  attor- 
neys to  be  aided  by  counsel,  and  probably  in  some  cases  they 
have  had  the  help  of  those  retained  by  private  prosecutors.    As 


t* 


94 


AMERICAN  CRIMINAL  RErORTS. 


no  oltjectioiia  Imvo  been  taken  in  these  cases,  and  no  attention 
has  been  called  to  the  statute,  it  cannot  bo  said  there  has  been 
any  practical  construction  of  the  statute;  and  wo  are  oblii,'ed  to 
consider  tlie  case  as  one  requiring  the  law  to  bo  enforced  accord- 
ing to  its  fair  meaning. 

The  mere  apiiointment  of  public  prosecutors  is  not  inconsist- 
ent with  private  prosecutions,  either  separately  or  nnder  otHcial 
supervision.  When  the  crown  olHcers  intervene  at  conunon  law, 
they  must,  as  we  suppose,  have  control  of  the  proceedings.  The 
proposals  in  England  to  establi.-^h  a  new  system,  do  not  aim  at 
entirely  destroying  the  right  of  privitte  prosecutions.  See  Edin- 
burgh Eevlew,  Xo.  220,  art.  2,  on  Criminal  rrocedurc  in  Eng- 
land and  Scotland.  But  so  long  as  the  present  system  exists, 
it  appears  to  make  it  not  only  the  right,  but  the  duty  of  individ- 
uals, to  complain  of  felonious  crimes;  and  tlio  disability  against 
bringing  private  actions  before  prosecuting  for  felonies  was  im- 
posed to  encourage  such  complaints,  and  to  ensure  private  dili- 
gence in  bringing  offenders  to  justice.  The  ])remium8  oli'ered  to 
informers  stand  on  a  similar  footing. 

The  policy  of  allowing  qui  tcwi  actions  has  not  been  encouraged 
in  this  state,  and  criminal  penalties  have  been  devoted  to  public 
purposes.  IS^either  is  the  felonious  character  of  an  injury  held 
to  prevent  an  action  before,  any  more  than  after  criminal  prose- 
cution. And  one  of  the  reasons  given  for  this  is  the  establish- 
ment of  public  prosecutors.    Hyatt  v.  Ada.ns,  10  Mich.,  180. 

It  is  impossible  to  account  for  the  change  in  our  statutes  re- 
quiring the  exclusive  control  of  criminal  procedure  to  be  in  the 
hands  of  public  officers  who  are  forbidden  to  receive  pay,  or  in 
any  way  become  enlisted  in  the  interests  of  private  parties, 
unless  we  assume  the  law  to  have  been  designed  to  secure  im- 
partiality  from  all  persons  connected  with  criminal  trials.  The 
law  never  has  prevented,  and  does  not  now  prevent,  ])rivate  com- 
plaints before  magistrates,  who  have  a  discretion  in  regard  to 
calling  in  the  prosecuting  attorney.  In  the  ordinary  course  of 
things,  the  case  for  the  prosecution  is  brought  out  on  that  ex- 
amination, and  justice  requires  that  it  should  be,  where  a  de- 
fendant does  not  waive  examination.  But  when  the  charge  is 
presented  on  which  the  respondent  is  to  be  tried  at  the  circuit 
(where  he  must  be  tried  for  all  statutory  and  common  law  fel- 
onies, except  petit  larceny),  the  law  requires  the  public  prosecutor 


.jjiil 
"fl 


MEISTER  V.  PEOPLE. 


95 


to  assume  and  retain  exclusive  charge  of  tlio  cause,  until  the 
ciiije  is  eiuled  by  ac(iuittal  or  conviction.  The  chief  daiij^ers  which 
the  statute  intends  to  guard  against  must  bo  tlioec  attendant  on 
tlie  trial,  inasmuch  as  the  preliminary  proceedings  usiudly  dc- 
tcnnine  the  nature  aiid  extent  of  the  accusation,  and  those  may 
be  under  the  charge  of  private  parties.  And  we  must  conclude 
that  the  legislature  do  not  consider  it  pro])er  to  allow  the  course 
of  the  prosecuting  otticer  during  the  trial,  to  be  exposed  to  the 
influence  of  the  interesth.  oi  passions  of  private  prosecutors,  ilis 
position  is  one  involving  a  duty  of  impartiality  not  altogether 
unlike  that  of  the  judge  himself.  Wo  have  had  occasion  hereto- 
fore to  refer  to  this  duty  in  these  officers  of  justice.  Their  posi- 
tion is  a  tryitig  one,  but  the  duty  nevertheless  exists,  and  the  law 
has  done  much  to  remove  hindrances  to  its  perfornuu\ce,  and  in 
no  case  more  plaiidy  than  by  the  prohibition  in  question  here, 
and  that  against  allowing  a  circuit  judge  to  act  as  counsel  in  his 
own  court,  before  another  judge,  as  was  done  in  Bashford  v. 
Peojyle,  24  Mich.,  2-45.  See,  for  illustrations,  Wel/ar  v.  People, 
30  ^lich.,  10;  Wagner  v.  People,  30  id.,  384;  Ilurd  v.  People, 
25  id.,  41G. 

The  courts  of  Massachusetts  have  passed  upon  their  statute 
several  times.  It  was  first  brought  to  their  attention  in  the  case 
of  Commonwealth  v.  Knapp,  10  Pick.,  477,  where  it  appeared 
that  Mr.  AVebster  had  aided,  without  objection,  in  tlic  triul  of  the 
principal  felon,  whose  accessories  were  on  trial,  and  that  reliance 
liad  been  had  on  his  aid  in  the  case  at  bar,  and  that  he  was  acting 
without  any  pecuniary  inducement. 

The  court,  under  these  circumstances,  holding  it  had  a  right 
to  allow  the  prosecuting  officer  to  obtain  help  in  a  proper  case, 
considered  it  admissible  in  that  instance,  but  reserved  their 
opinion  as  to  any  different  circumstances,  and  laid  stress  upon 
the  absence  of  any  interest  in  Mr.  "Webster  beyond  ''  a  disinter- 
ested regard  for  the  public  good."  In  Coinmomoealth  v.  Wil- 
liams, 2  Cush.,  582,  a  similar  course  was  sustained,  but  the  court 
said  it  could  only  be  allowed  for  stringent  reasons,  and  referred 
again  to  the  absence  of  any  pecuniary  compensation  from  any 
private  individual.  They  said  that  such  counsel  is  not  under 
ordinary  circumstances  to  be  permitted,  yet,  when  sanctioned  by 
the  court  under  the  limitations  suggested,  it  would  not  furnish 
sufficient  ground  for  setting  aside  the  verdict.    In  Commonwealth 


> 

1 

'1 

I      WS 


'       ;l  ■ 


96 


AMERICAN  CRIMINAL  REPORTS. 


V.  GMs,  -t  Gray,  140,  a  conviction  was  set  aside  because  the  court 
had,  in  tlie  absence  of  the  district  attorney,  appointed  counsel 
to  act  in  his  place,  wlio  had  been  retained  by  private  parties  in 
civil  Utilisation  of  the  same  matter.  In  Commomoeolth  v.  King, 
8  Gray,  />01,  a  gentleman  \Vas  allowed  to  act  as  counsel  wh-o  had 
acted  in  aid  of  the  prosecution  on  the  preliminary  examination, 
and  had  also  sat  upon  a  commission  of  inquest  concerning  the 
fire,  which  was  the  occasion  of  the  prosecution.  The  court  held 
this  peculiar  familiarity  M'ith  the  facts  would  make  his  help  val- 
uable, and  no  suggestion  was  made  by  any  one  that  ho  was  not 
disinterested,  as  no  interested  person,  it  must  be  supposed,  would 
have  been  allowed  to  sit  on  the  commission. 

The  supreme  court  of  Maine  in  State  v.  Bartlett,  55  Me.,  200, 
allowed  Gen,  Shejdey  to  act  with  the  prosecuting  attorney,  though 
under  retainer  from  the  insurance  company  at  whose  instance  the 
case  was  prosecuted;  and  disposed  of  the  Massachusetts  cases 
by  saying  that  in  the  only  one  where  the  conviction  was  set  aside, 
the  counsel  complained  of  was  in  effect  acting  district  attorney, 
and  so  within  the  words  of  the  statute,  which  they  held  should 
only  apply  to  that  officer. 

The  Massachusetts  court,  in  both  of  the  earlier  cases,  made 
the  absence  of  compensation  a  prominent  feature,  and  in  all  the 
cases,  spoke  of  the  employment  of  associates  as  exceptional,  and 
not  generally  allowable.  They  do  not  bear  out  the  Maine  decis- 
ion in  the  reasoning.  And  that  can  only  stand  on  its  own  rea- 
soning, upon  the  assumption  that  the  control  of  the  prosecuting 
attorney  will  destroy  any  influence  or  mischief  which  might  re- 
sult from  the  private  interests  of  his  colleagues. 

But  a  theory  which  holds  them  as  any  thing  but  his  deputies, 
or  assistants  in  office,  would  render  it  difficult  to  reconcile  their 
appearance  with  the  law,  which  compels  liim  to  conduct  the  pros- 
ecution. Such  counsel,  in  the  courts  of  the  United  States,  are 
required  to  take  the  oath  of  office,  and  are  made  expressly  public 
officers.  IG  L.  IT.  S.,  105.  The  experience  of  trials  shows  that 
any  other  position  is  fallacious.  AVhen  counsel  are  introduced 
into  a  cause,  and  aid  in  the  trial  or  argument,  it  is  little  short  of 
absurd  to  suppose  they  can  be  prevented  from  having  their  own 
way.  It  would  be  unseemly  and  unprofitable  for  one  counsel, 
during  a  trial,  to  interfere  with  his  associate's  questions  or  aro-u- 
ment;  and  competent  auxilliaries  would  not  be  engaged  on  terms 


MEISTER  V.  PEOPLE. 


OT 


■■1 


which  would  subject  them  to  open  slights.  "We  must  look  at 
things  as  they  exist,  and  every  one  knows  that  if  a  prosecuting 
attorney  allows  the  counsel  of  private  parties  to  intervene,  it 
must  usually  bo  for  the  reason  that  they  will  save  him  labor, 
and  assume  the  burden  of  the  prosecution.  The  mischief  which 
the  law  aims  to  avoid  is,  prosecution  by  interested  parties;  and 
if  such  is  the  policy  of  the  law,  it  ought  to  be  carried  out.  It 
does  not  assume  tliat  there  is  any  thing  dishonorable  in  such 
employment,  but  it  does  assume  that  it  is  vcot  proper  to  enirust 
the  administration  of  criminal  justice  to  any  one  who  will  be 
tempted  to  use  it  for  private  ends,  and  it  assumes  that  a  retainer 
from  private  parties  tends  to  this.  .[ 

The  great  scandals  which  have  occurred  from  the  abuse  of  crim- 
inal process  to  further  purposes  of  gain  or  vindictiveness  have 
often  demanded  notice;  and  no  better  remedy  has  been  suggested 
than  the  policy  of  our  statute.  It  does  not  prevent  any  one  from 
hunting  up  proofs,  or  furnishing  every  facility  to  the  officers  of 
the  law.  But  it  will  bo  very  inefficient,  if  it  is  possible  to  allow 
those  who  have  a  direct  pecuniary  intercLt  in  convicting  a  pris- 
oner, to  take  an  active  part  in  his  trial.  Until  the  legislature 
see  fit  to  restore  the  common  law  rule,  and  leave  cases  to  private 
prooccutions,  it  must  be  assumed  that  they  regard  it  as  unsafe 
and  opposed  to  even  handed  justice. 

As  the  liability  of  the  insurance  companies  on  their  policies 
would  be  avoided  by  proof  that  the  proj)erty  was  burned  by  the 
assured,  the  case  is  one  within  the  statute;  and  counsel  in  the 
interest  of  the  insurers  should  not  have  been  allowed  to  appear. 
It  appeared,  on  the  trial,  that  the  policies  of  insurance  were 
not  completed  for  delivery  at  the  home  t>ffice,  but  were  sent, 
with  printed  signatures,  to  George  A.  Baker,  who  signed  and 
delivered  them  as  agent.     Upon  attempting  to  prove  his  agency, 
it  ai)pearcd  that  the  authority  was  written,  and  was  not  pro- 
duced, and  no  proof  was  given  of  its  contents.     But  the  court 
allowed  evidence  of  recognition  to  stand  in  lieu  of  proof  of 
atfency,  and  for  that  purpose  testimony  was  intrDduced  that  the 
blank  policies  were  received  from  a  Chicago  iirm  purporting  to 
be  general  agents,  but  whose  authority  was  not  proved;  that  no 
losses  had  been  paid  by  any  of  the  companies  at  that  place;  that 
Baker  and  his  partner  made  remittances,  deducting  their  com- 
missions, and  not  showing  what  was  received  on  particular  poli- 
VoL.  I.- 7 


.:|:----^1 

1-                 -    .4:     .11 

im 


08 


AMERICAN  CRIMINAL  REPORTS. 


■'  ! 


cies;  that  reports  were  sent  with  lists  and  particulars  of  policies 
monthly,  and  these  were  sent  to  the  secretary,  who  acknowl- 
edged them.  No  evidence  was  given  of  the  contents  of  any  re- 
ports, or  of  the  incorporation  or  existence  of  the  companies,  or 
that  the  person  corresponding  with  Baker  was  secretary.  The 
court  held  the  evidence  sufficient  to  go  to  the  jury. 

The  statute  punishes  only  the  burning  of  property  actually  in- 
sured; and  nothing  but  a  valid  insurance  plainly  established 
would  suffice.  And  as  the  whole  validity  of  these  insurances 
depended  on  the  authority  of  Baker,  it  was  essential  to  show  it. 
There  was  here  no  proof  of  authority  from  any  one,  and  no  proof 
of  recognition  by  any  one  who  was  shown  to  be  connected  with 
and  authorized  to  act  for  the  alleged  insurers.  And  there  was 
no  production  of  the  writings  relied  on  for  recognition,  nor 
proof  of  their  genuineness.  The  case  was  entirely  barren  of  all 
proof  on  the  most  essential  j)art  of  the  issue,  and  the  court 
should  have  so  ruled. 

The  fire  was  on  the  22d  day  of  June.  Proof  was  given,  under 
exceptions,  that  about  a  month  before  the  fire  three  conversa- 
tions were  had  between  Leizer  Meister  and  John  Wagner  and 
John  Nugent  (at  one  of  which  William  Meister  was  present)  in 
which  Leizer  desired  to  get  them  to  burn  the  property  between 
the  1st  and  10th  of  June,  between  Saturday  night  and  Monday 
morning,  when  the  folks  would  be  away;  and  consulted  as  to 
the  best  way  of  burning.  This  testimony  was  objected  to,  as 
tending  to  show  another  offense,  under  a  different  statute. 

We  think  this  was  admissible  as  tending  to  show  a  purpose  to 
buin  the  property,  existing  not  very  long  before  the  fire;  and 
bearing  on  the  probabilities.  The  men  were  convicted  on  cir- 
cumstantial testim  ly,  and  it  was  not  foreign  to  the  issue  to 
show  a  ]irovious  conspiracy  to  burn  the  same  property.  If  the 
jury  believed  this  testimony,  they  must  have  found  that  the  two 
Meisters  desired  to  have  the  building  destroyed,  and  this  was 
certainly  one  of  the  elements  of  the  crime,  if  a  crime  was  com- 
mitted, and  one  of  great  importance. 

The  bill  of  exceptions  states  that  some  weeks  before  the  fire, 
Wagner  and  Nugent  were  arrested  for  burglary,  and  continued 
in  jail  until  after  the  fire,  and  were  convicted  and  sent  to  state's 
prison,  whence  they  were  brought  to  testify.  It  further  appeared 
from  their  cross-examination  that  they  were  of  infamous  character. 


MEISTER  V.  PEOPLE. 


99 


In  order  to  corroborate  their  testimony,  tlie  jailer  was  allowed 
to  swear  that,  daring  the  week  preceding  the  fire,  Nugent  told 
him  that  parties  owning  a  clothing  store  on  "Water  street  had 
spoken  to  him  and  Wagner  about  burning  it,  and  the  night  it 
was  to  be  burned  would  be  either  Saturday  or  Sunday  evening, 
when  they  would  be  in  liay  City.  He  refused  to  give  names. 
Also  that  Wagner  told  him  a  similar  story,  adding  that  the 
parties  owned  a  house  and  barn  on  the  Deerfield  road,  which 
tliev  had  also  spoken  to  him  about  burning.  This  last  fact  was 
stricken  out  as  immaterial. 

This  testimony  was  all  objected  to,  but  received. 

Tliis  was  not  the  statement  which  these  witnesses  had  made 
on  the  stand.  According  to  that,  the  time  of  burning  was  to 
have  been  on  or  about  the  eighth  of  June,  and  subsequent  to 
their  arrest.  If  they  had  any  conversation  about  a  fire  to  take 
place  on  the  22d,  it  must  have  been  after  their  arrest,  or  they 
must  have  given  a  false  account  under  oath  concerning  the  talk 
with  the  Meisters.  If  Xevins  is  believed,  there  could  be  no 
doubt  of  the  complicity  of  AVagner  and  Nugent  in  the  fire;  but 
there  can  be  as  little  doubt  that  they  made  no  statement  on  the 
stand  showing;  anv  knowledge  in  advance  of  such  an  event. 
There  is  no  identity  in  the  stories,  and  one  cannot  corroborate 
the  other.  The  efiect  of  allowing  this  testimony  would  be  to 
allow  a  conviction  on  the  unsworn  statements  of  infamous  wit- 
nesses, not  subject  to  any  cross-examination  upon  it.  If  a  Avit- 
ness  can  be  corroborated  at  all  by  his  repeated  statements  im- 
plicating third  jiersons,  the  statements  must  be  the  same  as  far 
as  they  go.  Upon  the  abstract  proposition,  no  decision  is  called 
for.    This  testimony  was  not  admissible. 

It  is  also  claimed  the  court  erred  in  refusing  to  charge  that 
there  was  no  evidence  on  which  the  two  women  could  l)c  con- 
victed. 

In  the  view  we  have  taken  of  the  proof  of  insurance,  there 
was  no  sufficient  evidence.  Eut  the  point  s]iecial]y  aimed  at  was, 
that,  assuming  the  insurance  proved,  there  was  no  proof  that  the 
women  kne\v  of  it,  and  had  an  intent  to  defraud  the  insurers. 

It  is  admitted  that  there  was  competent  proof  from  which 
the  jnr}'  were  at  liberty  to  find  them  guilty  of  the  burning. 
There  was  no  evidence  showing  any  knowledge  of  the  insurance 
directly.    But  whother  knowledge  of  a  fact  exists,  is  open  to 


;: 


V         ;  J. 


-i 


r:    ■■•) 


:|. 


if-'   -il      1 


100 


AMERICAN  CRIMINAL  REPORTS. 


proof  by  circumstances,  like  any  other  matter.  If  the  fact  is 
shown  to  exist,  under  circumstances  likely  to  make  it  known,  and 
persons  act  as  they  might  be  expected  to  act  if  they  knew  it,  we 
are  not  prepared  to  hold  that  inferences  of  notice  may  not  be 
drawn. 

If,  for  example,  it  were  shown  that  property  is  insured  where 
a  family  dwell,  with  store  and  dwelling  united,  and  it  is  also 
shown  that  the  property  is  intentionally  burned,  it  must  be  as- 
sumed it  was  not  burned  without  some  purpose.  A  jury  might 
properly  infer  that  a  wife  would  not  destroy  her  own  or  her  hus- 
band's property  unless  by  his  command,  or  with  a  design  to  in- 
jure him  or  some  one  else.  If  no  enmity  appeared  against  the 
husband,  a  person  must  be  very  ignorant  who  would  not  su])- 
pose  it  was  to  conceal  some  fraud,  or  to  injure  some  one  else. 
And  if  it  was  likely  to  injure  third  persons  it  woi;ld  usually  do 
so  by  endangering  their  neighboring  property,  or  by  subjecting 
them  to  some  liability  contingent  on  the  fire,  which  is  generally 
on  an  insurance.  Juries  have  a  right  to  judge  from  the  sur- 
rounding circumstances,  whether  parties  have  acted  in  accord- 
ance with  one  or  another  of  these  motives,  or  whether  they  have 
been  ignorant  tools  of  others;  and  if  their  conduct  is  such  as 
to  clearly  indicate  one  of  these  motives,  so  as  to  remove  all  rea- 
sonable doubts,  the  inference  is  rightly  drawn  that  there  was 
such  knowledge  as  would  call  out  that  motive. 

AVe  think  the  facts  on  this  part  of  the  case  were  properly  left 
to  the  jury. 

But  a  serious  q;iestion  is  presented,  whether  the  men  were 
properly  convicted  under  the  information.  They  are  charged 
with  the  burning  directly,  and  not  as  having  procured  tlie  prop- 
erty to  be  burned;  while  the  evidence  was  clear  that  if  they  were 
guilty  at  all,  it  was  by  way  of  procurement,  and  that  what  they 
did  was  before  the  fire,  botli  being  absent  when  it  happened. 
Our  statutes  having  made  all  persons  i)rincipals  who  would  at 
common  law  have  been  accessories,  the  question  arises  whether 
this  is  such  a  case. 

The  position  of  these  defendants  would  have  been  at  common 
law  that  of  accessories  before  the  fact,  if  this  burning  were  a 
common  law  felony  on  the  part  of  the  women.  Ko  one  could 
be  a  principal  without  actual  presence,  near  enough  to  aid  if 
needed,  in  furthering  the  crjme.    The  crime  of  such  an  acces- 


MEISTER  V.  PEOPLE. 


sory  (liifcrs  in  time  and  may  diifer  in  venue,  from  that  of  the 
principal;  it  is  not  the  same  act,  but  is  in  the  nature  of  a  pre- 
vious conspiracy  to  procure  its  commission. 

AVliere  a  felony  is  created  by  statute,  it  depends  somewhat  on 
the  terms  of  the  statute,  whether  it  reaches  accessories  or  not. 
It  is  necessary,  in  all  cases,  that  the  accessory  have  the  same  in- 
tent with  the  principal.  1  Hale, p.  G17,  CIS;  Archb.  Cr.  PI.,  7; 
lluss.  Cr.,  35,  3G;  1  Bish.  C.  L.,  g  006;  and  unless  by  virtue  of 
some  statutory  provision,  no  one  who  is  indicted  as  principal  can 
be  convicted  as  accessory,  or  vice  versa.  When  a  statute  in  gen- 
eral terms  declares  a  certain  act  to  be  a  felony,  it  will  involve 
the  consequent  liability  of  accessories  before  or  after  the  fact, 
where  there  is  nothing  inconsistent  with  that  consequence.  Bishop 
St.  Cr.,  §  139,  142;  1  lluss.  Cr.  L.,  3-4,  and  when  a  statute  in 
terms  punishes  not  only  the  principal  oft'ender,  but  those  who 
would  by  the  tei-ms  of  the  statute  be  described  precisely  as  ac- 
cessories would  be  at  common  law,  the  persons  so  described  will 
be  treated  as  accessories.     1  Buss.,  31-2. 

But  a  statute  will  nevertheless  be  construed  by  its  language, 
and  will  not  be  extended  beyond  it,  and  it  may  be  so  drawn,  and 
often  is,  as  to  be  confined  in  its  operation  to  certain  persons,  or 
persons  having  a  certain  intent  or  quality,  and  where  it  does  this, 
it  is  enforced  according  to  its  terms. 

The  section  of  the  statute  under  which  this  prosecution  is 
brought  includes  two  distinct  offenses.  The  first  is,  Avherc  any 
person  shall  "  wilfully  burn  insured  property,  with  intent  to  de- 
fraud the  insurer."  The  second  is,  wdiere  any  one  "  shall  wil- 
fully cause  or  procure  the  same  to  be  burned,  with  intent  to  in- 
jure the  insurer."     Comp.  L.,  §  7500. 

If  the  second  offense  were  only  that  of  an  accessory,  the  Avhole 
sectiun  might  be  regarded  as  merely  reaching  the  different  actors 
in  the  same  offense,  and  there  could  be  no  great  difficulty  in 
determining  their  position.  But  the  second  clause  goes  further, 
and  punishes  all  persons  who  procure  the  fraudulent  burning  of 
insured  property,  whether  the  person  doing  the  burning  had  or 
had  not  the  design  to  defraud  insurers,  whatever  else  may  have 
been  his  guilty  purpose.  This  clause  is  equally  applicable  to  all 
guilty  procurement,  whether  through  guilty  principals  or  through 
agents  who  woiild  not  be  principal  offenders.  It  was  evidently 
designed  to  prevent  the  danger  of  an  acquittal  of  the  guiltiest 


4^u 


102 


jk.MERICAN  CRIMINAL  RE  PORTS. 


parties,  by  reason  of  a  failure  to  convict  those  who  are  merely 

their  tools. 

Where  the  statute-  has  so  definitely  specified  all  the  persons 
who  could,  under  any  circumstances,  be  guilty,  and  has  divided 
them  into  two  distinct  classes,  it  seems  to  be  no  more  than  rea- 
sonable to  deduce  an  intention  to  require  each  to  be  charged 
with  his  own  statutory  offense,  in  the  language  or  substance  of 
the  statute,  and  not  to  leave  it  optional  with  the  prosecutor  to 
charge  the  defendants  according  to  the  facts,  or  against  the  facts 
by  legal  fiction.  The  danger  of  it  appears  on  the  present  record, 
where  it  became  a  serious  question  whether  the  plaintiffs  in  error 
might  not  be  entitled  to  an  acquittal  on  account  of  the  want  of 
guilty  knowledge  of  their  co-defendants,  who  in  turn  may  have 
been  exposed  to  prejudice  by  being  joined  with  them.  If  sej)!!- 
rately  informed  against  according  to  the  parts  they  are  severally 
charsred  with  having  taken  in  the  transaction,  the  issues  will  bo 
more  fairly  presented,  and  the  results  more  satisfactory. 

The  judgment  must  be  reversed,  and  the  verdict  set  aside,  and 
it  must  be  certified  to  the  court  below  that  there  should  be  a 
new  trial,  but  that  the  plaintiffs  in  error  cannot  be  convicted  un- 
der the  information,  unless  they  were  present  at  the  burning. 

The  other  justices  concurred. 

Note.  — At  common  law,  all  criminal  prosecutions  for  offenses  against  the  poi-snns 
or  property  of  individuals  were  set  on  foot  and  conducted  by  private  persons.  Suth 
an  one  was  called  the  2»'osecHtor,  and  employed  and  paid  his  own  counsel.  1  >y 
the  statute,  21  Hen.  VIII.,  cap.  11,  provision  was  made,  hy  virtue  of  which  the 
prosecutor  on  a  conviction  for  larceny  obtained  restitution  of  his  goods.  The 
statutes,  25  Geo.  II.,  cap.  36,  18  Geo.  111.,  cap.  19,  and  7  Geo.  III.,  cap.  64,  make 
provisions  for  payuig  the  expenses  of  the  prosecutor  in  conductuig  bona  Jhh  crim- 
inal prosecutions  which  seemed  to  t^e  trial  judges  meritorious.  The  design  was 
to  encourage  private  pei-sons  to  prosecute  to  a  conviction  all  criminal  offenses  of 
which  they  were  the  victims.  And  partly  in  order  to  secure  this  the  more  effectu- 
ally, it  was  held  that  any  private  injury  which  amounted  to  a  felony  was  merged 
in  the  felony,  at  least  until  after  a  crinunal  prosecution  for  the  felony  was  had; 
and  until  such  prosecution  had  been  had,  and  terminated  either  in  the  conviction 
or  acquittal  of  the  offender,  no  action  would  lie  for  the  private  injury.  4  Black. 
Com.,  362,  363;  1  Hill,  on  Torts,  60-6:3.  But  in  the  United  States  it  is  every- 
where the  policy  to  entrust  prosecutions  for  criminal  offenses  in  the  higher  courts 
to  sworn  public  prosecutors  only,  whose  duty  it  is  to  see  that  justice  is  honestly 
and  impartially  administered.  And  it  is  generally  the  policy  of  tlie  law  to  sm- 
round  them  with  such  restrictions  and  safeguards  as  will  prevent  their  l)eing  influ- 
enced by  any  interested  or  improper  motives.  The  general  scope  of  the  duties  of 
a  public  prosecutor,  and  of  counsel  associated  with  him,  is  ably  discussed  by  Mr. 


defendai 
grounds 


ISAACS  V.  STATE. 


103 


Bishop  ill  1  Bish.  Crini.  Proceed.,  see.  98S,  et  seq.  It  is  certainly  more  conducivo 
to  justice,  tiiat  the  counsel  in  cluirge  of  a  criniijial  prosecution  should  be  respon- 
sible only  to  the  public,  and  that  he  should  be  ui  no  wise  under  the  influence  of 
private  or  uyured  parties,  who  often  seek,  under  the  cover  of  tlie  criminal  law,  to 
extort  private  reilxess  or  gi'atifj'  personal  malice.  In  accord  with  our  general  pol- 
icy, it  is  now  the  better  opniion  that  there  is  no  longer  any  merger  of  a  private 
injury  in  a  felony,  nor  is  the  private  remedy  sus-pended  until  a  criminal  prosecu- 
tion has  been  had.  See  1  Hill,  on  Torts,  ch.  II,  sec.  8;  Boston  v.  Dana,  1  Gray, 
tiJj  Hyatt  V.  Adams,  16  Mich.,  180. 


Isaacs  vs.  State. 

(48  Miss.,  2:34.) 

CoKsriiiACY:    Practice, 


Ou  an  indictment  for  conspiring  to  defi-aud,  it  is  not  necessaiy  to  allege  or  prove 
that  the  fraud  was  successful.  The  act  of  conspiracy  is  an  offense  of  itself, 
though  the  fraud  be  never  consummated. 

Where  tiiere  is  a  joint  verdict  .and  judgment  against  several,  wliich  is  erroneous 
as  to  one,  against  whom  there  was  no  evidence,  the  judgment  must  Ije  re- 
versed as  to  all.  A  nolle  prosequi  should  have  been  entered  as  to  the  one 
against  whom  there  was  no  evidence,  or  a  venlict  of  acquittal  rendered  in 
liis  favor. 

Tarbkll,  J.  N.  Isaacs,  M.  AVolfe,  A.  Cohen  and  A.  Lewis 
were  jointly  indicted  in  the  Warren  county  circuit  court,  in  1S71, 
for  a  cons])iraey  to  cheat  and  defraud  Herman  &  Moss,  and  I. 
Iilieinhart,  merchants  of  Vicksburg,  of  their  personal  property, 
viz.:  goods,  wares  and  merchandise.  After  arraignment  and 
plea,  there  was  a  motion  to  cpiash  tlie  indictment  on  the  ground 
that  it  "  does  not  allege  that  the  property'  mentioned  was  obtained 
by  the  prisoners  or  either  of  them;"  that  it  "does  not  state  tliat 
the  property  was  obtained  by  prisoners,  or  any  of  them,  by  reason 
of  false  pretense,  nor  is  the  character  of  the  false  pretense  stated;" 
and,  that  it  "  is  vague  and  uncertain,  and  does  not  state  with 
clearness  the  ownership  of  the  property."  The  record  docs  not 
show  a  decision  of  this  motion,  and  presumptively  it  was  waived. 
As  to  this  indictment,  we  refer  to  AVharton's  Am.  Cr.  Law,  title, 
Conspirac}-;  Wharton's  Forms  and  Precedents,  title.  Conspiracy, 
and  to  IJishop  ou  Cr.  Law,  vol.  2,  Conspiracy,  with  the  remark 
that  it  is  for  the  conspiracy,  and  not  for  obtaining  property. 
The  trial  in  1872  resulted  in  a  verdict  of  guilty  against  all  the 
defendants.  There  was  a  motion  for  a  new  trial  on  the  following 
grounds:    Error  in  giving  the  instruction  for  the  state,  and  in 


'£{' 


104 


AMERICAN  CRIMINAL  REPORTS. 


1/ 


::1 


refusing  the  second  instruction  for  the  defendants;  the  jury  dis- 
regarded the  instructions;  tlie  verdict  is  unsupported  by  tlie  ev- 
idence,  and  misconduct  of  tlie  jury  during  the  trial,  which  mo- 
tion was  overruled.  The  judgment  and  sentence  of  the  court 
was  as  follows:  "It  is,  therefore,  considered  hy  the  court,  that 
for  the  crime  of  conspiracy  of  which  they  stand  convicted,  they 
be  sentenced  to  imprisonment  in  the  county  jail  of  Warren  coun- 
ty for  the  term  of  one  day,  and  each  of  thorn  he  fined  f^50,  and 
they  pay  the  costs  of  this  suit."  Thereupon,  the  accused  prose- 
cuted a  writ  of  error  to  this  court,  and  assigned  thereon  the  fol- 
lowing causes  of  error:  In  giving  the  instruction  for  the  state;  in 
refusing  the  second  instruction  for  the  accused;  in  refusing  to 
quash  tlie  indictment;  in  overruling  the  motion  for  a  new  trial; 
the  insufficiency  of  the  indictment,  and  verdict  unsupported  by 
evidence. 

The  sinjjle  instruction  for  the  state  is  drawn  with  rare  accuracv, 
statiniT  the  rule  of  law  and  the  facts  necessary  to  constitute  the 
crime  of  conspiracy,,  and  clearly  and  impartially  submits  to  the 
jury  the  question  for  their  consideration. 

The  instruction  for  the  accused  i-efused  by  the  court  was  not 
applicable  to  the  charge  of  conspiracy,  but  to  a  prosecution  for 
obtaining  goods  by  false  pretenses.  The  act  of  conspiracy  is  an 
otfense  of  itself,  though  the  fraud  be  never  consummated.  Am. 
Cr.  Law  and  Bishop  Cr.  Law,  supra.  Upon  all  other  points  the 
instructions  for  the  accused  were  full,  and  considerate  of  their 


rights. 


Upon  an  examination  of  the  evidence  sent  up  with  the  record, 
we  are  clearly  of  opinion  that  the  verdict  against  Isaacs  is  whol- 
ly unwarranted.  Either  a  nolle  prosequi  should  have  been  en- 
tered as  to  liiin,  or  he  should  have  been  acquitted  by  the  jury. 
For  this  manifest  error,  the  judgment  will  be  reversed.  The  de- 
fendants having  been  jointly  indicted  and  convicted,  the  judg- 
ment must  of  necessity  be  reversed  as  to  all.  As  to  the  others, 
however,  the  jury  would  seem  to  have  been  autliorized  to  infer  a 
conspiracy  from  the  evidence  as  to  them,  though  it  is  not  our 
purpose  to  express  any  opinion  of  their  guilt  or  innocence,  or  of 
the  weight  of  the  testimony.  If  truthfully  represented,  the  con- 
duct  of  Wolfe,  Cohen  and  Lewis  was  disgraceful.  For  the  ver- 
dict against  Isaacs,  however,  the  judgment  is  reversed,  and  the 
cause  remanded,  with  a  venire  de  novo. 


LANDRINGHAM  v.  STATE. 


105 


Landringiiam  v8.  State. 

(49  Ind.,  180.) 

Conspiracy:    Constitutional  law — Indictment. 

It  is  not  necessary  to  constitute  the  offense  of  conspiracy  that  any  act  should  be 
done  in  pui-suance  of  the  conspiracy. 

A  jiroviso  in  a  criminal  statute  against  conspiracy  which  reads  as  follows: 
"  I'rovided,  that  in  any  indictment  under  tliis  section  it  shall  not  bo  nec- 
essary to  charge  tlie  particular  felony  which  it  was  the  puqioso  ♦  * 
to  commit,"  is  unconstitutional  and  void. 

An  indictment  for  conspiracy  to  commit  robbery  which  charges  an  intent  to 
"forcibly  and  feloniously  take  from  the  peraon  of  A.  B.,"  but  does  not 
charge  that  it  was  to  be  done  "  by  violence,"  or  "  by  putting  m  fear,"  is  ia- 
Eutticient. 

BusKiuK,  C.  J.  The  appellant  was  indicted  and  convicted 
under  the  following  statute: 

"  Sec.  1.  Be  it  enacted  by  the  general  assembly  of  the  state 
of  Indiana,  that  any  person  or  persons  who  shall  unite  or  com- 
bine with  any  other  person  or  persons  for  the  purpose  of  com- 
mitting a  felony,  or  any  person  or  persons  who  shall  knowingly 
unite  with  any  other  \  erson  or  persons,  or  body,  or  association 
or  combination  of  persons,  whose  object  is  the  commission  of  a 
felony  or  felonies,  shall  be  guilty  of  a  felony  and  upon  convic- 
tion shall  be  lined  in  any  sum  not  exceeding  five  thousand  dol- 
lars, and  be  imprisoned  in  tlie  state  prison  not  less  than  two  nor 
more  than  twenty-one  years;  provided,  that  in  any  indictment 
under  this  section,  it  shall  not  be  necessary  to  charge  the  par- 
ticular felony  which  it  was  the  purpose  of  such  person  or  persons 
or  the  object  of  each  [such]  person  or  ])ersons,  or  body,  associa- 
tion or  combination  of  persons  to  commit." 

The  indictment  was  as  follows: 

"  The  grand  jurors  for  the  county  of  Marion,  and  state  of  Indi- 
ana, upon  their  oaths  present  that  James  Landringham,  on  the 
12th  day  of  November,  A.  D.  1S7-A,  at  and  in  the  county  of  Mar- 
ion, and  state  aforesaid,  did  unlawfully  and  feloniously  unite, 
combine  and  conspire  with  Thomas  King,  for  the  purpose  of 
making  an  assault  upon  one  Thomas  J.  Barlow,  and  for  the  pur- 
pose and  with  the  intent  then  and  there  of  feloniously  and  forci- 
bly taking  from  the  person  of  the  said  Barlow  ten  United  States 
treasury  notes,  of  the  denouaination  of  two  dollars  each,  and  of 


1 

! 
1 

F 

i 

!.'■!'■ 

•i     '  W 
1 

ig 


1:1 


100 


AMERICAN  CRIMINAL  REPORTS. 


tlio  value  of  two  doUiirB  each,  ten  national  bank  notes  of  the  de- 
noniinatiou  of  ten  dollars  each  and  of  the  value  of  ten  dollars 
each,  twenty  United  States  treasury  notes  of  the  denomination 
of  five  dollars  each  and  of  the  value  of  five  dollars  each,  and 
twenty  national  bank  notes  of  the  denomination  of  five  dollars 
each  and  of  the  value  of  five  dollars  each,  all  of  said  notes  being 
the  jiersonal  goods  of  said  Barlow,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  state  of  Indiana." 

Motions  were  made  and  overruled  to  quash  the  indictment  and 
in  arrest  of  judgment,  and  these  rulings  are  assigned  for  error, 
and  present  for  our  decision  the  cj[nestion,  whether  the  indict- 
ment is  sufficient.  If  the  above  quoted  act  is  valid  in  all  of  its 
parts,  then  it  was  not  necessary  to  charge,  or  even  to  name,  the 
felony  intended  to  be  committed;  for  it  is  expressly  declared  in 
the  proviso  that  it  shall  not  be  necessary  to  charge  the  particu- 
lar felony  which  it  was  the  jjurpose  of  such  person  or  persons, 
or  the  object  of  such  person  or  persons,  or  body,  association  or 
combination  of  persons  to  commit.  We  are  very  clearly  of  the 
opinion  that  the  proviso  is  in  conflict  with  the  constitution,  and 
against  natural  right,  and  hence  is  absolutely  void.  If  the  in- 
dictment need  not  charge  the  particular  felony  intended  to  be 
committed,  the  accused  would  have  no  means  of  knowing,  before 
the  trial  commenced,  what  offense  he  was  charged  with,  and  con- 
sequently would  have  no  opportunity  of  pre])aring  for  his  de- 
fense. The  question  was  so  fully  considered  in  this  court  in  the 
case  McLaiujldbi  v.  The  State,  45  Ind.,  338,  that  wo  do  not 
deem  it  necessary  to  reargue  or  restate  it. 

The  proviso  being  void,  it  was  necessary  for  the  indictment  to 
charge  the  particular  felony  which  the  appellant  had  conspired, 
united  or  combined  to  comnnt;  and  this  leads  us  to  inquire 
whether  the  indictment  does  properly  charge  any  particular  fel- 
ony. It  obviously  would  not  be  sufficient  to  name  the  i)articular 
felony  intended,  but  the  indictment  should  contain  averments 
sufficient  to  show  what  particular  felony  the  accused  had  united 
and  combined  to  commit.  The  averments  should  be  as  specific 
and  full  as  in  an  indictment  charging  the  commission  of  raich 
felony.  It  was  evidently  the  purpose  of  the  draughtsman  to 
charge  the  appellant  with  uniting  and  combining  with  Thomas 
King  to  commit  a  robbery,  but  we  think  such  ofi'ense  is  not  suf- 


IS. 


i 


PEOPLE  V.  WILSON. 


107 


ficlcntly  cliarged.  The  statute  thus  defines  the  crime  of  rvhbcry : 
*'  Every  i)ers(>ii  wlio  shall,  forcibly  and  feloniously,  take  t'r.  lU  the 
person  of  another  any  article  of  value  by  violence,  or  |>iuting  in 
fear,  shall  be  deemed  guilty  of  robbery."  2  (1.  &  JI.,  442,  sec. 
IS.  Tiie  indictment  should  have  used  the  words,  "  by  violence" 
or  "puttin^i'  in  fear."  BicknellCrim.  Trac,  31l»;  2  Arch.  Crim. 
Tr.  tic  ri.,  417,  41.S;  SeijiiwHrv.  The  ISUite,  15  Ind.,  2SS. 

It  is  contended  by  counsel  for  appellee  that  the  use  of  the 
word  "forcibly"  dispenses  with  the  use  of  the  words  "by  vio- 
lence" or  "  i)utting  in  fear."  The  statute  and  approved  forms 
use  both  words,  "forcibly,"  and  "by  violence." 

The  court  instructed  the  jury  that  it  was  unnecessary  for  tho 
indictment  to  charge  any  particular  felony  which  the  appellant 
had  united  and  combined  to  commit.  The  jury  must  have  un- 
derstood from  such  charge  that  it  was  not  necessary  for  the  state 
to  prove  any  particular  felony. 

The  appellant  asked  the  court  to  charge  the  jury  that  there 
could  be  no  conviction  unless  it  was  proved  that  he  had  com- 
mitted some  overt  act  to  csirry  out  the  purpose  contemjdated  by 
the  conspiracy.  It  is  well  settled,  that  it  is  not  necessary,  to 
constitute  the  offense  of  conspiracy,  that  any  act  shoiild  be  done 
in  pursuance  of  the  conspiracy.  See  4  Chitty's  Blackstone,  top 
p.  OS,  side  p.  130,  and  note  31,  and  authorities  there  cited. 

Tiie  judgment  is  reversed,  with  costs;  and  the  cause  is  remanded 
for  further  proceedings  in  accordance  with  this  opinion;  and  tho 
clerk  will  give  immediately  the  necessary  notice  for  tho  return 
of  the  prisoner. 


People  vs.  "Wilson. 

(64  lU.,  195.) 

Contempt:    Newnpaper  aiilclc  —  LiabilHj/  of  proprietor  of  newspaper — Lia- 
bility of  managing  editor  —  Vuhlication  as  to  pending  case. 

A  newRpapor  article  concerning  a  criminal  case  pending  before  the  supreme  court 
which  prophesies  that  the  prisoner  will  get  a  new  trial  and  eventually  escape 
justice,  because  $1,400  is  enough  now-a-days  to  piurchase  immunity  from 
the  consequences  of  any  crime,  and  that  "  the  courts  are  now  completely  in 
the  control  of  corrupt  and  mercenary  shystei-s — the  jackals  of  the  legal  pro- 
fession— who  feast  and  fatten  on  human  blood,  spilled  by  the  hands  of 
other  men,"  is  a  contempt  of  court  of  flagrant  character,  and  calculated  to 


r: 


•J  -1 


■k'' 


J''  V 


108 


AMERICAN  CRIMINAL  REPORTS.- 


! 


cmbarrans  and  obstruct  the  odministnition  of  justice.  Scott  and  SiiELDO.y, 
JJ.,  (liHsenting. 

UntU'r  a  Htutnti"  that  "  the  said  court  shall  have  power  to  punish  conteniiitx  of- 
fered by  any  person  to  it  while  sitting,"  tho  court  has  power  to  punish  for 
a  construclivo  contempt  connnitted  by  a  newspaper  article  refiiTinfjf  to  i) 
case  then  pendin^jf  before  tlie  court.  All  acts  caleuiated  to  inipiMle,  embar- 
rass or  obstruct  the  coui't  in  the  administration  of  justice  should  be  consid- 
ered UK  done  in  tho  presence  of  the  court. 

It  svciiuo  that  the  court  would  have  no  right  to  pimish  any  criticism  on  its  de- 
cisions or  official  conduct  in  reffard  to  cases  that  are  ended,  so  long  as  its  iw 
^      tion  is  coiTcctly  stated  and  its  official  intejrrity  is  not  impeadied. 

The  proiirietor  of  a  newspaper  may  bo  pimished  for  contempt  for  an  ai-fido 
published  in  the  newspaper  owned  by  him,  although  sucli  article  was  pub- 
lished without  his  knowledge  and  consent,  when,  to  a  rule  to  show  caiiso 
why  he  should  not  bo  punished,  ho  makes  no  defense  as  to  matters  of  fact, 
except  that  he  did  not  know  or  sanction  it  before  publication. 

The  managing  editor  of  a  newspaper  may  bo  punished  for  C(v  ■tempt  for  per- 
mitting the  publication  of  a  newspaper  article,  which,  although  not  vrrii- 
ten  by  him,  was  seen  by  him  before  publication,  and  wluch  he  had  power  to 
exclude  from  the  paper. 

Oi.  a  rule  to  show  cause  why  an  attachment  should  not  issue  against  the  re- 
t.^^'ondents  for  a  contempt,  if  the  resi)ondents  rely  on  an  excuse  only,  they 
should  appear  in  person.  If  they  appear  by  attorney,  and  defend  on 
legal  grounds,  an  excuse  can  only  be  regarded  in  mitigation  of  punishment, 
and  not  as  gi-ouud  for  discharging  the  rule. 

This  -was  a  proceeding  in  the  name  of  T/ie  Peoj)Ie  v.  Ckirles 
L.  Wilson  and  Andrew  Shuman,  tlie  publislier  and  editor  of  a 
newspaper  published  in  the  city  of  Chicago,  called  the  "  Chicago 
Evening  Journal,"  for  an  alleged  contempt  of  this  court,  in  tho 
publishing  in  said  newspaper,  on  the  10th  day  of  Octoher,  1S72, 
during  the  sitting  of  said  court  at  tlie  September  term,  1S72, 
thereof,  of  an  article  which  ajipeared  as  an  editorial  in  said 
newspaper,  in  reference  to  the  case  of  CJirhtopher  Itafferty  v. 
The  People,  which  was  then  pending,  on  writ  of  error,  in  this 
court.  The  article  referred  to  is  set  forth  in  the  following  in- 
formation,  presented  to  the  court  by  the  Attorney  General,  on 
the  23d  of  October,  1S72: 

"  State  of  Illinois  —  Supreme  Court  —  ss. 

''Northern  Grand  Division  — Septemher  Tenn,  A.D.  1872. 

"  The  People  of  tue  State  of  Illinois  m.  Cuarles  L.  "Wilson 
AND  Andrew  Siicman. 
"Information— And  now  come  the  rJd  People,  by  "VVash- 
ington  Bushnell,  Attorney  General,  aiid  represent  ^^  the  court 


PEOPLE  V.  WILSON. 


100 


that  on  tlio  ICtli  day  of  October,  A.  D.  1872,  there  was,  and  still 
is,  pentliiifi;  in  this  court,  a  certain  cause  for  the  adjudication  and 
(letonniimtion  of  this  court,  wherein  one  Chridtophor  Kafferty 
is  phiintiil'  in  error,  and  the  People  of  the  State  of  Illinois  are 
defendants  in  error,  and  that,  on  the  same  day  there  was  pub- 
lished in  the  city  of  Chicago,  in  said  state,  a  certain  daily  news- 
paper, called  the  '  Chicago  Evening  Journal,'  of  which  said  pa- 
per on  said  day  the  said  Charles  L.  Wilson  was  proprietor,  and 
the  said  Andrew  Shiiman  was  editor,  and  that  said  Charles  L. 
Wlhon  and  Atulreio  Shianan^  on  the  said  day,  caused  to  be 
published  in  said  jmptr,  of  and  concerning  said  cause  so  pend- 
ing in  this  court,  and  of  and  concerning  this  court  and  its  sup- 
posed action  with  reference  to  said  cause,  a  certain  article,  in  the 
words  following,  that  is  to  say: 

" '  TiiK  Case  of  Rakfeutv.  At  the  time  a  writ  of  supersedeas 
was  granted  in  the  case  of  the  murderer  Chris.  IJall'erty,  the 
public  was  blandly  assured  that  the  matter  would  be  examined 
into  by  the  supreme  court  and  decided  at  once;  that  possibly  the 
hanging  of  this  notorious  human  butcher  would  not  be  delayed 
for  a  single  day.  Time  6])eed8  away,  liowever,  and  we  hear  of 
nothing  definite  being  done.  Eafterty's  counsel  seems  to  be 
studying  the  policy  of  delay,  and  evidently  with  success.  The 
rift-raff,  who  contributed  fourteen  hundred  dollars  to  demonstrate 
that  hanging  is  played  out,  may  now  congratulate  themselves  on 
the  success  of  their  little  game.  Their  money  is  operating  splend- 
idly. "We  have  no  hesitancy  in  prophesying  clear  through  to  the 
end  just  what  will  be  done  with  liatferty.  He  will  be  granted  a 
new  trial.  He  will  be  tried  somewhere,  within  a  year  or  two. 
He  will  be  sentenced  to  imprisonment  for  life.  Eventually  he 
will  be  pardoned  out,  and  this  in  spite  of  all  our  public  meetings, 
resolutions,  committees,  virtuous  indignation  and  what  not. 
And  why?  Because  the  sum  of  fourteen  hundred  dollars  is 
enough  now-a-days  to  enable  a  man  to  purchase  immunity  from 
the  consequence  of  any  crime.  H  next  winter's  session  of  the 
legislature  does  not  hermetically  seal  up  every  chink  and  loop- 
hole through  which  murderers  now  escape,  it  will  deserve  the 
bitter  censure  of  every  honest  man  in  Illinois.  We  must  sim- 
plify our  modes  of  procedure  in  murder  trials.  The  criminal 
should  be  tried  at  once,  and  when  found  guilty,  should  be  hanged 
at  once  and  the  (quicker  hanged  the  better.    The  courts  are  now 


'  'J 


110 


AMERICAN  CRIMINAL  REPORTS. 


completely  in  the  control  of  corrupt  and  mercenary  shysters  — 
the  jackals  of  the  legal  profession  —  who  feast  and  fatten  on  hu- 
man Wood  spilled  by  the  hands  of  other  men.  All  this  must  bo 
remedied.    Thee  can  be  found  a  remedy,  and  it  must  be  found.' 

"  AVherefore  the  said  attorney  general,  for  and  on  behalf  of  tlie 
said  peoi)le,  moves  this  court  for  rule  upon  the  defendants 
Cliarles  L.  "Wilson  and  Andrew  Shu  man,  to  be  and  appear  be- 
fore this  court,  on  a  day  to  be  named,  and  show  cause,  if  any, 
they,  or  either  of  them  have,  why  an  attachment  should  not  issue 
against  them  for  contempt  of  this  court  in  respect  to  the  publi- 
cation of  said  article.        AVashington  Busiinkll,  J^^'y  Goi'iy 

Afterwards,  on  the  25th  day  of  the  same  month  of  October,  a 
ride  was  entered  of  record,  requiring  the  said  Charles  L.  Wil- 
son and  Andrew  Siiuman  on  or  before  the  coming  in  of  the 
court  on  the  first  day  of  November  next  following,  to  show 
cause,  if  any  they  shoidd  have,  why  an  attachment  should  not 
issue  against  them,  for  a  contempt  of  this  court,  in  the  publish- 
ing of  the  article  mentioned.  Accordingly,  in  obedience  to  such 
rule,  on  the  said  first  day  of  November,  there  was  tiled  in  behalf 
of  the  respondent  Wilson  the  following  answer: 

"  And  now  comes  Charles  L.  Wilson,  one  of  the  above  re- 
spondents, in  obedience  to  the  rule  heretofore,  to  wit:   on  the 
25th  day  of  October  A.  D.  1872,  entered  in  said  court,  requiring 
this  respondent  and  Andrew  Shuman  to  show  cause  why  an  at- 
tachment should  not  issue  against  them,  for  a  contempt  of  said 
court,  on  account  of  tlie  matters  and  things  in  a  certain  inform- 
ation filed  in  said  court,  in  said  rule  mentioned,  and  in  answer 
to  the  said  rule,  this  respondent  says,  that  he  is  the  sole  propri- 
etor of  the  said  newspaper,  mentioned  in  the  said  information, 
called  the  Chicago  Journal,  and  that  the  article  set  forth  in  said 
information  was  pul)lished  therein  on  the   10th  day  of  October, 
1872,  but  this  respondent  says  that  neither  before,  nor  at  any 
time  of  the  publication,  had  he  any  knowledge  or  information 
relative  to  the  same.    This  respondent  did  not  know  before  said 
paper  in  which  the  article  appeared  was  published,  that  said  ar- 
ticle, or  any  article  upon  the  subject,  was  written,  or  to  be  writ- 
ten, or  that  any  article  upon  the  subject  was  to  be  published, 
and  that  he  neither  advised,  or  counseled,  nor  was  he  advised  or 
counseled  witli  by  any  person  whatever,  relative  to  the  publica- 
tion of  said  article,  or  any  article  whatever  upon  the  subject. 


PEOPLE  V.  WILSON. 


Ill 


"  This  respondent  further  says,  that  the  first  knowledge  or  in- 
formation ho  had  relative  to  said  article,  on  its  publication,  was 
when  he  read  the  said  article  in  said  paper,  after  its  publication 
and  distribution. 

"  Tliis  respondent  further  says,  that  he  Is  informed  and  believes 
that  no  disrespect  was  intended  by  said  article  to  said  court,  or 
to  any  judge  thereof,  and  that  a  fair  construction  thei-eof  will 
not  warrant  an  inference  to  that  effect. 

"This  respondent  is  advised  and  Ijelieves,  that  the  publication 
of  said  Jtrticlo  was  not  designed,  and  had  no  tendency  to  impede, 
embarrass  or  obstruct  the  administration  of  justice  in  said  court. 
And  this  respondent  does,  and  will  insist  that  he  had  and  still 
has  the  right,  through  his  said  paper,  by  himself  or  his  agents, 
to  examine  the  proceedings  of  any  and  every  department  of  the 
government  of  this  state,  and  that  he  is  not  responsible  for  the 
truth  of  such  publication,  nor  for  the  motives  with  which  they 
were  or  are  made  by  the  summary  process  of  an  attachment  for 
contempt,  save  when  such  publications  imjjede,  embarrass  or  ob- 
struct the  administration  of  justice. 

"This  respondent  further  s.ays,  that  such  has  been  the  estab- 
lished hiw  of  this  state  for  over  thirty  years  past,  and  that  said 
court  has  no  judicial  power  to  change  the  same. 

"  This  respondent  takes  this  occasion  to  renew  his  repeated  ex- 
pressions of  confidence  in  the  ability  and  integrit}'  of  said  court, 
and  of  the  individual  members  of  the  same,  and  as  evidence  of 
the  same  gives  the  following  article,  which  was  published  in  said 
paper,  issued  on  the  '^Otli  of  September,  1872;  that  is  to  say: 
'The  supreme  court  of  Illinois,  although,  perhaps,  too  ready  to 
grant  motions  for  supersedeas,  has  no  sympathy  with  criminals. 
The  judges  are  all  men  infinitely  above  such  suspicions.  It  is 
their  business  to  examine  every  case  appealed  to  them,  without 
any  bias  one  way  or  the  other,  taking  note  solely  of  the  facts  pre- 
sented in  each  case.  The  question  for  the  higher  court  to  decide 
is  this:  iJid  the  accused,  from  first  to  last,  have  a  fair  trial?  The 
presumption  is  that  he  did,  and  the  rule  is  to  grant  a  supersedeas 
only  in  case  it  is  clear  that  he  did  not  have  a  fair  trial.  "While 
we  cordially  commend  the  zeal  of  the  prosecuting  attorney  and 
of  our  courts  in  their  eftbrts  to  check  the  appalling  frequency  of 
murders  in  this  city  and  county,  we  suggest  to  them  more  cau- 
tion in  observing  all  the  forms  and  technicalities  of  the  law  in 


)    i 


i 


1    H 


. '>*  ' 


HM 


113 


AMERICAN  CRIMINAL  REPORTS. 


the  conduct  of  future  murder  trials.  The  supreme  court  will 
certainly  continue  to  insist  upon  it,  and  every  supersedeas  granted 
acts  as  a  premium  upon  murder.' 

"  This  respondent  further  says,  that  at  the  time  of  the  publi- 
cation of  said  article  first  mentioned,  there  was  an  intense  excite- 
ment in  the  community,  and  particularly  in  the  city  of  Chicago, 
on  account  of  frequent  murders,  and  the  escape  of  the  perpetra- 
tors thereof;  and  this  respondent  is  informed  and  believes  that 
the  design  of  said  article  was  to  impress  upon  the  community 
the  importance  of  electing  members  of  the  next  general  assem- 
bly of  this  state,  who  would  remedy  the  defects  in  the  criminal 
law  of  this  state,  by  which  criminals  are  able  to  escape  punish- 
ment, and  not  to  reflect  upon  the  ability  or  integrity  of  said 
court,  or  any  member  thereof,  nor  to  imi)ede,  embarrass  or  ob- 
struct the  administration  of  justice.  AVherefore,  this  respondent 
prays  that  the  said  rule,  as  against  him,  may  bo  discharged. 

"Chakles  L.  "Wilson." 
"  State  of  Illinois  —  Cook  County  —  ss. 

"  Charles  L.  Wilson,  being  duly  sworn,  says  he  is  one  of  the 
respondents  named  in  the  foregoing  answer,  and  that  the  matters 
stated  in  said  answer  are  true.  Chaulks  L.  AVilson." 

"  Subscribed  and  sworn  to  before  me  this  29th  day  of  October, 
1872.  IIexry  W.  Farrau, 

"  Notary  PuMIc:' 

And  on  the  same  first  day  of  !N"ovember,  the  following  answer 
was  filed  in  behalf  of  the  respondent  Shuman: 

"And  now  comes  Andrew  Shuman,  one  of  the  respondents, 
in  obedience  to  the  rule  heretofore,  to  wit,  on  the  25th  day  of 
October,  1872,  entered  in  said  court,  requiring  the  respond- 
ent and  Charles  L.  "Wilson  to  show  cause  why  an  attachment 
should  not  issue  against  tlieni,  for  a  contempt  of  said  court,  on 
account  of  the  matt^^rs  and  things  alleged  in  a  certain  informa- 
tion filed  in  said  court,  in  said  rule  mentioned,  and  in  answer  to 
said  rule  this  respondent  says,  that  he  is  managing  editor  of  said 
newspaper,  mentioned  in  the  said  information,  called  the  Chicago 
Journal,  and  that  the  article  set  forth  in  said  information  was 
published  therein  on  the  IGth  day  of  October,  1S72. 

"  But  this  respondent  says  that  said  article  was  not  written  by 
him,  nor  by  his  ■  rocurement  or  advice,  but  by  an  assistant  editor 
of  said  newspaper,  which  said  article  was  submitted  to  this  re- 


L 


PEOPLE  f.  WILSON. 


iia 


spondent  for  his  examination  before  the  same  was  puLlished,  as 
are  all  articles  prepared  for  publication  in  said  jiaper.  Upon  the 
submission  of  said  article  to  this  respondent,  he  read  the  same, 
and  allowed  it  to  be  published  without  dissent  on  his  part,  and 
without  supposing  that  there  was  anything  in  it  disrespectful 
to,  or  in  contempt  of,  said  court,  or  of  any  of  its  judges  or  offi- 
cers. The  wording  and  expressions  of  said  article  were,  as  this 
respondent  then  believed  and  still  believes,  designed  and  intended 
to  impress  upon  the  public,  and  upon  the  next  legislature  of  this 
state,  the  necessity  of  such  a  change  in  the  laws  regulating  and 
governing  the  trial  of  persons  accused  or  convicted  of  crime,  as 
to  ensure  a  more  speedy  and  certain  punishment,  and  that  this 
was  the  only  aim,  purpose  or  intention  of  said  article. 

"  Tills  respondent  further  says,  tliat  a  fair  construction  of  said 
article  will  not  warrant  an  inference  that  any  disrespect  was  in- 
tended by  the  same  to  the  said  court,  or  any  judge  thereof.  This 
respondent  is  advised  and  believes,  that  the  publication  of  said 
article  had  no  tendency  to  impede,  embarrass,  or  obstruct  the 
administration  of  justice  in  said  court;  that  it  was  not  so  designed, 
and  had  not  that  tendency.  And  this  respondent  does,  and  will 
insist,  that  he  had  and  still  has  the  right,  as  managing  editor  of 
said  paper,  to  examine  the  proceedings  of  any  and  every  depart- 
ment of  the  government  of  this  state,  and  that  he  is  not  respon- 
sible for  the  truth  of  said  publication,  nor  for  the  motives  with 
which  they  were  or  are  made,  by  the  summary  process  of  an 
attachment  for  contem]>t,  save  when  such  publications  impede, 
embarrass  or  obstruct  the  administration  of  justice. 

"Tliis  respondent  further  says,  that  such  has  been  the  estab- 
lished law  of  this  state  for  over  thirty  years  past,  and  that  said 
court  has  no  jutlicial  power  to  change  the  same. 

"  Tills  respondent  takes  this  occasion  to  renew  his  repeated  ex- 
pressions of  confidence  in  the  ability  and  integrity  of  said  court, 
and  of  the  individual  members  of  the  same,  and  as  evidence 
thereof,  gives  the  following  article,  which  was  published  under 
his  supervision,  in  said  paper,  issued  on  the  2Gth  day  of  Septem- 
ber, 1ST2,  that  is  to  say: 

" '  The  supreme  court  of  Illinois,  although,  perhaps,  too  ready  to 

grant  motions  for  supersedeas,  has  no  sympathy  with  criminals. 

The  judges  are  all  men  infinitely  above  such  suspicion.     It  is 

their  business  to  examine  every  case  appealed  to  them,  without 

Vol,.  L-8 


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il 

'i 

I 

AMERICAN  CRIMINAL  REPORTS. 

any  bias,  ono  way  or  the  other,  taking  note  solely  of  the  facts 
presented  in  eacli  case.  The  question  for  the  higher  court  to 
decide  is  this:  Did  the  accused,  from  first  to  last,  have  a  fair 
trial?  Tlie  presumption  is  that  he  did,  and  the  rule  is  to  grant 
a  supersedeas  only  in  case  it  is  clear  that  he  did  not  have  a  fair 
trial.  Wliile  we  cordially  commend  the  zeal  of  the  prosecuting 
attorney,  and  of  our  courts,  in  their  efforts  to  check  the  appalling 
frequency  of  murders  in  this  city  and  county,  we  suggest  to  them 
more  caution  in  observing  all  the  forms  and  technicalities  of  the 
law  in  the  conduct  of  future  murder  trials.  Tlie  supreme  court 
will  certainly  continue  to  insist  upon  it,  and  every  supersedeas 
granted  acts  as  a  premium  upon  murder.' 

"  This  respondent  further  says,  that  at  the  time  of  the  publi- 
cation of  said  article,  first  mentioned  there  was  an  intense  ex- 
citement in  the  community,  and  particularly  in  the  city  of  Chi- 
cago, on  account  of  the  frequent  murders,  and  the  escape  of  the 
perpetrators  thereof,  and  this  respondent  is  informed,  and  be- 
lieves, and  so  lie  understood  at  the  time,  that  the  design  of  said 
article  was  to  impress  upon  the  community  the  importance  of 
electing  members  to  the  next  general  assembly  of  this  state,  who 
would  remedy  the  defects  in  the  criminal  laws  thereof,  by  which 
criminals  are  able  to  escape  punishment,  and  not  to  reflect  on 
the  ability  or  integrity  of  said  court,  or  any  member  thereof,  nor 
to  imjiede,  embarrass  or  obstruct  the  administration  of  justice. 

"AVherefore  this  respondent  prays  that  said  rule,  as  against 
him,  may  be  discharged.  Axdkew  Suuman." 

"  State  ot  Illinois  —  Cook  Counti/  —  ss, 

"  Andrew  Sliuman,  being  duly  sworn,  says  lie  is  one  of  the 
respondents  named  in  the  foregoing  answer,  and  that  the  mat- 
ters stated  in  suitl  answer  are  true.  Anokew  Smumax.'' 

"  Subscribed  and  sworn  to  before  me  this  31st  day  of  October, 
1ST2.  Cykus  J.  CoiJSE,  Notary  Pullic.'''* 

Mr.  Washintjton  Bushnell,  Attorney  General,  for  the  people: 

I  desire,  in  this  case,  respectfully  to  call  the  attention  of  the 
court  to  the  following  authorities,  which,  in  my  judgment,  are 
conclusive  up(.(n  the  question  of  the  power  of  this  court  to  issue 
a  writ  of  attachment  against  the  respondents,  for  the  jniblication 
of  the  matters  and  things  contained  in  the  information  herein 
filed. 

It  is  a  contempt,  punishable  by  attachment,  to  publish  re- 


PEOPLE  r.  WILSON. 


115 


marks  in  a  newspaper,  which  liave  a  teiKlency  to  prejudice  the 
public  with  respect  to  the  merits  of  a  cause  depending  in  court, 
and  to  corrupt  the  administration  of  justice.  4:  Black.  Com., 
2SC;  F^jMii'te  i?%.S  51  X.  C,  202;  id.,  398;  1  Dall.,  319. 

A  publication  ]icnding  a  suit,  reflecting  on  the  court,  the  par- 
ties to  tlie  suit,  the  witnesses,  the  jurors  or  the  counsel,  is  a  con- 
tempt of  court.  jroUlmjsioorth  v.  Daane,  AVall.,  77,  102; 
BronsoiVs  Case,  12  Johns.,  4G0;  -t  Black.  Com.,  280. 

The  publication  of  a  paper  to  prejudice  the  public  mind  in  a 
cause  depending  is  a  contempt,  if  it  manifestly  refer  to  the  suit, 
though  it  do  not  expressly  appear  on  the  face  of  the  writing. 
EcftjruhrtL'd  V.  Panamore,  3  Yates,  4:38. 

Denying  any  criminal  or  disrespectful  design,  in  publica- 
tions reflecting  on  the  proceedings  before  the  court,  will  not  jus- 
tify the  party,  if  they  appear  to  the  court  to  amount  to  a  con- 
tempt.    People  V.  P'reer,  1  Caines,  458,  518. 

The  provision  in  the  constitution  of  the  United  States,  that 
the  trial  of  all  crimes  shall  be  by  jury,  does  not  take  away  the 
right  (tf  courts  to  punish  contempt  in  a  summary  manner.  The 
provision  is  to  be  construed  to  relate  only  to  those  crimes 
M'hich  by  our  former  laws  and  customs  had  been  tried  by  a  jury. 
JloIl!»(/.nrart/i,  v.  Duane,  "Wall.,  77,  lOG. 

The  House  of  Hepresentatives  of  the  United  States  may  pun- 
ish persons  not  members  thereof  for  contempt.  Andei'son  v. 
Dunn,  0  Wheat.,  204. 

Til  is  power  is  al«o  incident  to  courts  of  law  and  equity.  2far- 
iner  v.  Dyer,  2  Greenl.,  1G5;  State  v.  White,  Charlt.,  130; 
Yo.teft  V.  Lansing,  9  Johns.,  395;  G  id.,  337;  4  id.,  31G; 
Trial  of  Smith  «fc  Ogden,  73;  State  v.  Tipton,  1  Blackf.,  100; 
1st  Burr's  Trial,  352;  Clarl'.  v.  People,!  Breese,  200;  8  Conn., 
370;  Un'ited  States  v.  IFudson,  7  Cranch,  32;  see  1  Kent's 
Com.,  3d  ed.,  300  (note  B).  See  also  the  case  of  State  v.  Ma- 
tlidi'K,  37  X.  11.,  453,  and  authorities  there  quoted. 

In  the  celel)rated  case  of  The  Cohimomoealth  v.  John  Dan- 
(h'/il'je,  2  Ya.  Cas.,  414,  the  court  say:  "They  cannot  but 
feel  it  a  delicate  task  to  define  and  decide  upon  the  extent  of 
their  own  powers,  nor  be  ignorant  that  the  judgment  they  are 
called  upon  to  render  may  expose  them,  on  the  one  hand,  to  the 
imputation  of  timidity  and  irresolution,  or  on  the  other,  to  that 
of   usurpation   and  tyranny.     The    verity  of   these  suspicions 


i 


116 


AMERICAN  CRIMINAL  REPORTS. 


"svoultl  not  be  more  unworthy  of  the  judges  than  tlie  fact 
of  their  shrinking  from  this  question,  because  of  the  conse- 
quences in  whicli  themselves  miglit  be  involved  in  it.  ^'  *  * 
In  this  country  we  know  of  no  privileges  but  such  as  exist  for 
the  public  good.  Many  such  privileges  we  have,  from  those 
which  appertain  to  the  legislature  itself  down  to  such  as  be- 
long to  the  lowest  executive  officer.  Those  which  surround 
the  administration  of  justice  belong  to  the  same  order.  Courts, 
their  officers  and  process,  are  shielded  from  invasion  and  insult, 
not  from  any  imaginary  sanctity  in  the  institutions  themselves 
or  the  persons  of  those  who  compose  them  (as  in  the  political 
and  ecclesiastical  establishments  of  another  hemisphere)  but 
solely  for  the  purpose  of  giving  them  their  due  weight  and  au- 
thority, and  to  enable  those  who  administer  them  to  discharge 
their  functions  with  impartiality,  fidelity  and  efitct. 

"  This  is  the  true  test  of  every  privilege  not  granted  l)y  stat- 
ute, and  is  the  spirit  of  every  one  (not  merely  private)  which  is 
Bo  secured.  The  political  character  of  the  judiciary,  and  the 
tendency  of  the  duties  which  are  devolved  upon  it,  have  render- 
ed it  necessary  to  invest  it  with  a  considerable  share  of  these 
privileges. 

"It  is  confessedly  the  wealcest  branch  of  all  governments, 
wielding  neither  wealth,  force  nor  patronage.  Its  duties  consist 
in  adjusting  and  settling  the  contested  riglits  of  individuals,  in 
controlling  their  turbulence  and  punishing  their  crimes.  Tlie^o 
duties  are  often  of  a  severe  and  rigorous  character,  and  they  ai-e 
generally  to  be  discharged  in  almost  immediate  contact  with 
those  on  whom  they  act.  Their  exercise  will  frequently  elicit 
r'iG  angry  passions,  or  excite  unworthy  and  sinister  attempts  to 
•  las  or  avert  their  operation,  and  where  there  is  little  real  power 
and  no  patronage,  a  certain  degree  of  external  dignity  may  have 
been  considered  necessary  to  sui)ersede  a  too  fre<pent  resort  to 
the  actual  powers  of  the  courts." 

In  4  Blackstone,  283,  that  writer  says:  "The  contempts  that 
are  thus  punished  are  either  direct,  which  openly  insult  or  resist 
the  i)owers  of  the  courts,  or  the  persons  of  tlie  judges  who  pre- 
side, etc;"  and  on  page  285,  in  enumerating  the  contempts  wlilch 
degrade  the  judicial  authority,  he  refers  to  one  which  consists 
"  in  speaking  or  writing  contemptuously  of  the  court  or  jud'^es 
acting  in  their  judicial  capacity."  • 


.-jM*- 


PEOPLE  c.  WILSON. 


117 


If  the  matters  coniplaiiieil  t»f  arise  at  a  distance,  of  wliicli  the 
court  cannot  have  so  perfect  a  kno\vled<;e,  unless  by  the  confes- 
sion of  the  party  or  tlie  testimony  of  others,  it  will  in  its  dis- 
cretion award  the  jiroper  process  to  bring  the  party  before  it,  of 
which  process  of  attachment  is  one.     2  Ya.  Cas.,  p.  -loO. 

That  to  scandalize  a  court  by  s}>eakin<i;  or  writing,  either  in  its 
presence  or  absence  is  a  high  contempt.  Let  the  judges  of  a 
court  be  i)roclaimed  in  public  print  as  corrupt  cowards,  when 
acting  in  their  judicial  capacity,  and  how  long  will  it  be  before 
sucli  judges  and  the  courts  held  by  them  will  be  covered  with 
opprobrium  and  contempt?     Id.,  -ioG. 

It  is  a  high  contempt,  punishable  as  aforesaid,  to  publish,  by 
speaking  or  writing,  anything  during  the  pendency  of  a  partic- 
ular cause  in  any  such  court,  by  which  an  imputation  is  cast  upon 
tlie  judges,  or  any  one  of  the  judges,  as  to  their  purity,  impar- 
tiality or  integrity  as  respects  that  cause.  Comnioiiioealth  v. 
Danhi'ldge,  2  Va.  Cas.,  4'JG;  2  Atkyns;  OmoahPs  Casey  and  the 
case  of  T/ie  Klny  v.  Barl/er,  Strange,  411. 

I  do  not  desire  to  enter  into  any  extended  argument  upon  the 
merits  of  this  application  for  a  writ  of  attachment,  and  there- 
fore content  myself  by  referring  this  honorable  court  to  the 
above  authorities. 

Bcchiolthy  Ayer  dj  Kales,  iox  the  respondents. 

Lawjjkn'ck,  C.  J.  The  respondents,  Charles  L.  Wilson  and 
Andrew  Shuman,  have  been  placed  under  a  rule  to  show  cause 
why  an  attachment  should  not  issue  against  them  for  contempt. 
The  information  filed  by  the  attorney  general,  upon  which  the 
rule  was  made,  sets  forth  that  one  of  the  respondents  is  the  pro- 
prietor, and  the  other  chief  editor,  of  a  newspaper  published  in 
the  city  of  Chicago,  called  the  "Chicago  Evening  Journal,"  and 
presented  as  a  ground  for  this  proceeding  an  editorial  article 
published  in  that  paper  on  the  16th  day  of  October.  The  article 
is  set  out  at  length  in  the  information.  It  is  entitled  '"  The 
Case  of  Rafferty,"  Rafl'erty  had  recently  been  tried  for  muitler, 
in  Cook  county,  found  guilty,  and  sentenced  to  death.  A  writ 
of  error,  staying  the  execution  of  the  sentence  until  the  further 
order  of  this  court,  had  been  granted,  and  this  writ  of  error  was 
pending  and  undetermined  before  ns  at  the  date  of  the  publica- 
tion.   The  article  published  is  as  follows: 


■  .  1 

i 

i'i 

'^Hfl 

' 

1 

118 


AMERICAN  CRIMINAL  REPORTS. 


"The  Case  ofRaffeuty.  —  At  the  time  a  writ  of  supcivcdoag 
•Nvas  gnuitcd,  in  tlie  case  of  the  inurdercr  Chris.  Ealierty,  tlie  j)ul^ 
lie  was  blandly  assured  that  the  matter  would  he  examined  into 
by  the  supreme  court,  and  decided  at  once  —  that  possibly  the  haii^'- 
ing  of  this  notorious  human  butcher  would  not  be  delayed  for  a 
single  day.  Time  speeds  away,  however,  and  we  hear  of  nothing 
definite  being  done.  liaflerty's  counsel  seems  to  be  studying 
the  policy  of  delay,  and  evidently  with  success.  The  rilt-ratl" 
who  contributed  fourteen  hundred  dollars  to  demonstrate  that 
*  hanging  is  ])layed  out'  may  now  congratulate  themselves  on 
the  success  of  their  little  game.  Their  money  is  operating 
splendidly.  We  have  no  hesitancy  in  prophesying  clear  througli 
to  the  end  just  Avhat  will  be  done  with  Ratlerty.  lie  will  be 
granted  a  new  trial.  He  will  be  tried  somewhere,  within  a  year 
or  two.  He  will  be  sentenced  to  imprisonment  for  life.  Event- 
ually he  will  be  pardoned  out.  And  this,  in  spite  of  all  our 
public  meetings,  resolutions,  committees,  virtuous  indignation, 
and  what  not.  And  why?  Because  the  sum  of  fourteen  hun- 
dred dollars  is  enough  nowadays  to  enable  a  man  to  ]>urchase 
immunity  from  the  consequences  of  any  crime. 

"  If  next  winter's  session  of  the  legislature  does  not  hermet- 
ically seal  up  every  chiidc  and  loop  hole  through  which  murder- 
ers now  escape,  it  will  deserve  the  bitter  censure  of  every  honest 
man  in  Illinois.  "We  must  simplify  our  mode  of  procedure  in 
murder  trials.  The  criminal  should  be  tried  at  once,  and  M'heu 
found  guilty  should  be  hanged  at  once  —  and  the  quicker  hanged 
the  better. 

"  The  courts  are  now  completely  in  the  control  of  corrupt  and 
mercenary  shysters  —  the  jackals  of  the  legal  profession — who 
feast  and  fatten  on  human  blood  spilled  by  the  hands  of  other 
men.  All  this  must  be  remedied.  There  can  be  found  a  rem- 
edy, and  it  must  be  found." 

To  the  rule  granted  upon  the  motion  of  the  attorney-general, 
the  respondents  have  severally  answered  under  oath.  They  have 
declined  to  argue  the  case,  either  orally  or  in  writing,  though 
opportunity  has  been  allowed  for  that  purpose. 

The  respondent  AVilson  admits,  in  his  answer,  that  he  is  the 
proprietor  of  the  newspaper,  but  denies  all  knowledge  of  the 
article  prior  to  its  publication.  AVhile  tliis  fact  should  intluence 
the  degree  of  the  punishment  to  which  he  may  be  liable,  it  does 


iC-. 


PEOPLE  r.  WILSON. 


119 


not  exonerate  liiin  from  responsibility.  The  re.*priiKlont  Shumau 
admits  he  is  the  editor  in  chief.  lie  denies  the  uutliorship  of  the 
article,  but  says  he  read  it  before  its  publication,  and  permitted 
it  to  be  published.  Both  respondents  disavow  any  intentional 
disrespect  to  the  court,  or  any  desii^n  to  embarrass  the  adminis- 
tration of  justice,  and  insist  that  they  have  the  riifht  to  examine 
the  proceedings  of  every  department  of  the  government  of  this 
state,  and  that  they  are  not  responsible,  in  a  proceeding  of  this 
character,  for  the  truth  of  their  publications,  or  for  the  motives 
with  which  they  may  be  made,  "save  when  such  publications  im- 
pede, embarrass  or  obstruct  the  administration  of  justice." 

They  state,  under  the  solemnities  of  an  oath,  as  a  fact  within 
their  personal  knowledge  that "  such  hi;s  been  the  established  law 
of  this  state  for  over  thirty  years  past,  sml  that  said  court  has  no 
judicial  power  to  change  the  same."  Such  a  sworn  statement,  as 
to  the  law  of  contempt  api)licable  to  newspaper  publications,  is 
somewhat  remarkable.  If  we  give  to  the  saving  clause,  in  their 
answers,  the  interpretion  which  it  was  possibly  designed  to  bear, 
the  statement  may  be  accepted  not  merely  as  a  truth,  but  as  a 
truism.  The  only  ground  for  pronouncing  any  act  or  publica- 
tion a  contempt  of  court  is,  that  it  tends  in  its  final  results  to 
"  impede,  embarrass,  or  obstruct  the  administration  of  justice," 
If,  on  the  other  hand,  the  respondents  designed  to  say,  or  to  be 
understood  as  saying,  that  they  are  privileged  to  make  any  pub- 
lications concerning  proceedings  in  court,  however  false,  to  as- 
sail the  integrity  of  the  court,  or  to  endeavor  to  inihime  popular 
])assion  concerning  cases  before  it,  and  not  be  liable  to  attach- 
ment for  contempt,  unless  it  appear  that  the  publication  coni- 
plained  of  really  has  the  actual  and  visible  effect  of  impeding, 
embarrassing  or  obstructing  the  administration  of  justice,  in  a 
manner  susceptible  of  proof  as  an  accomplished  fact  —  if  the 
answers  are  to  be  understood  in  this  sense,  it  is  to  lie  reirretted 
that  the  respondents  were  not  better  advised  as  to  the  law,  before 
swearing  what  the  law  is. 

The  revised  code  of  lS-±.5,  in  speaking  of  the  supreme  court, 
contains  the  following  provision:  "The  said  court  shall  have 
power  to  punish  contempts  offered  by  any  person  to  it  while  sit- 
ting."   This  act  has  never  been  rejjealed  or  modified. 

In  the  case  of  Stuart  v.  The  People,  3  Scam.,  405,  decided  in 
1842,  a  similar  provision  in  the  statute  of  1S29,  in  regard  to  cir- 


mmm 


i: 
1 

•  1 

120 


AMERICAN  CRIMINAL  REPORTS. 


cnit  courts,  camo  Ijufore  tills  court  for  construction.  Tlio  court, 
after  saying  that  the  statute  ini«^lit,  witli  great  propriety,  Im  re- 
gartled  as  a  limitation  upon  the  power  of  the  court  to  punish 
for  any  other  contempts  than  those  connnitted  in  its  presence, 
add  the  following  most  significant  and  important  (pialiHcatiun: 
"  In  this  power  would  necessarily  be  included  all  acts  calculated 
to  impede,  end)arrass  or  obstruct  the  court  in  theadniinistratiim 
of  justico.  Such  acts  would  be  considered  as  done  in  the  pres- 
ence of  the  court." 

The  respondents  cvidcjitly  had  this  case  before  them  when 
their  answers  were  drawn.  They  use  its  language,  with  the  ex- 
ception of  a  most  material  word,  which  changes  the  meaning  of 
the  entire  sentence.  The  respondents  say  the  rule  is,  that  pub- 
lications are  a  contempt  only  when  they  impede,  embarrass  or 
obstruct  the  administration  of  justice.  The  rule  laid  down  by 
this  court  was  that  they  are  a  contempt  when  they  are  calculated 
to  have  that  ett'ect.  The  dilference  is  radical,  and  marks  pre- 
cisely the  difterence  between  the  guilt  or  innocence  of  the  re- 
spondents in  this  case.  They  swear  to  a  rule  which  would  retpiire 
us  to  say  that  we  have  .actually  been  impeded,  eml)arrassed  or 
obstructed  in  the  administrati(jn  of  justice,  before  we  can  hold 
the  respondents  guilty  of  contempt.  The  true  test  is,  not 
whether  the  court  has  been  weak  or  base  enough  to  be  actually 
influenced  by  a  publication,  but  whether  it  was  the  object  and 
tendenc\'  of  the  publication  to  produce  such  an  eli'ect. 

It  need  hardly  be  said  that  we  can  not  accept,  as  a  reason  for 
discharging  the  rule,  the  disclaimer  in  the  answers  of  any  in- 
tentional disrespect  or  any  design  to  emb;  -rass  the  administra- 
tion of  justice.  The  meaning  and  intent  of  the  res]>ondents 
must  be  determined  by  a  fair  interpretation  of  the  language  they 
have  used.  Theycaimot  now  escape  responsibility  by  claiming 
that  their  words  did  not  mean  what  any  reader  must  have  under- 
stood them  as  meaning. 

Xo  candid  man  can  deny  that  the  article  in  question  was  well 
calculated  to  make  upon  the  public  mind  the  impression  that 
the  court,  in  a  pending  suit,  was  influenced  by  money  in  its 
judicial  action,  and  that  it  could  be  so  influenced  in  other  cases. 
Xeither  can  it  be  denied  that  the  article  seeks  to  intimidate  the 
court  as  to  the  judgment  to  be  pronounced,  in  a  case  then  pend- 
ing, and  involving  the  life  or  death  of  a  liuman  being.     Tho 


iL 


t--f*i 


PEOPLE  V.  WILSON. 


m 


article  ilecliiros  tliat  the  money  raised  for  Rafferty  "13  operating 
gplt'iiclidly; "  predicts  that  ho  will  be  ^'ranted  a  new  trial,  and 
avers  that  "  the  sum  of  fourteen  hundred  dollars  is  enoui^h  now- 
a-ilajs  to  enahle  a  man  to  purchase  immunity  from  the  consc- 
(lueiices  of  any  crime,"  and  that  '•  the  courts  are  now  completely 
in  the  control  of  corruj>t  and  mercenary  shysters  —  the  jackals 
uf  the  lej,'al  profession."  This  language  will  bear  but  one  in- 
terpretation. 

I  shall  not  stop  to  cite  and  discuss  the  authorities  bearing  on 
the  law  of  contempt,  as  that  labor  has  been  performed  by  another 
lueinher  of  the  court;  I  merely  quote  the  rule  as  laid  down  by 
]!isli()p,  an  American  writer,  in  his  work  on  Criminal  Law,  sec- 
ti(»u  21<l.  Ileuses  the  following  language:  "  According  to  the 
general  doctrine  any  publication,  whether  by  parties  or  strangers, 
which  concerns  a  case  pending  in  court,  and  has  a  tendency  to 
prcjiulice  the  public  concerning  its  merits  and  to  corrupt  the 
achuinistration  of  justice,  or  which  reflects  on  the  trial  or  its  pro- 
ceedings, or  on  the  parties,  the  jurors,  the  witnesses  or  the  coun- 
sel, may  be  visited  as  a  contempt."  AVhether  tested  by  this 
connnon  law  definition  or  by  the  rule  laid  down  by  this  court  in 
the  case  of  Stuart,  already  cited,  there  is  no  room  for  doubt  that 
the  article  in  question  must  be  held  a  contempt  of  flagrant  char- 
acter. It  related  to  a  case  in  court  involving  in  its  final  issues 
a  hiunan  life.  The  answers  of  the  respondents  state  that  at  the 
time  of  the  publication  "  there  was  intense  excitement  in  the 
cunununity,  and  particularly  in  the  city  of  Chicago,  on  account 
of  the  frequent  murders,  and  the  escape  of  the  j)erpetrator3 
thereof."  This,  no  doubt,  is  true,  and  this  article  seems  to  have 
been  studiously  written,  with  a  view  to  direct  po])ular  clamor 
against  this  court,  and  compel  it  either  to  affirm  the  judgment 
sending  llafl'erty  to  execution,  or  incur  the  imputation  of  bribery 
and  the  clamor  of  an  angry  city  to  be  echoed  throughout  the 
state  by  a  portion  of  the  Chicago  press.  The  demand  was  not 
that  we  should  calmly  examine  the  record  of  Kafferty's  trial  to 
see  whether  his  conviction  had  been  legal,  but  that  we  should 
give  him  over  to  execution,  because  there  was  such  impunity  for 
crime  in  the  city  of  Chicago  that  it  was  necessary  some  man 
should  be  immediately  hung.  "We  have  since  examined  the  rec- 
ords of  this  man's  conviction,  and  reversed  the  judgment,  all  tlio 


i ' 


Wm 


■^'^fflf 


122 


AMERICAN  CRIMINAL  RKPORTS. 


ill 


iiieiiibers  of  the  court  IioMing  tliat  a  plain  provision  of  the  stat- 
ute hud  been  violateil  on  liiH  trial. 

Let  us  say  here,  anil  so  plainly  that  our  position  can  be  mis. 
represented  only  by  malice  or  gross  stupidity,  tliat  we  do  not 
deprecate,  nor  should  we  claim  the  ri<^ht  to  i)unish,  any  criticism 
the  ]'i.  .-IS  may  clioose  to  jiublish  upon  our  decisions,  opinions  ur 
ofhcial  conduct  in  re^'ard  to  cases  that  have  passed  from  our  juris- 
diction,  so  loiij,'  as  our  action  is  correctly  stated,  and  our  otKcial 
integrity  is  not  impeached.  Tlie  respondents  are  correct  in  say- 
in<^  in  their  answers  that  they  have  a  right  to  examine  the  pro- 
ccedings  of  any  and  every  department  of  the  government.  Far 
bo  it  from  us  to  deny  that  right.  Such  freedom  of  the  press  is 
indispensable  to  the  preservation  of  the  freedom  of  tiie  people. 
But  certainly  neither  these  respondents  nor  any  intelligent  por- 
Bon  connected  with  the  press,  and  having  a  just  idea  of  its  re- 
sponsibilities as  well  as  its  ])ower8,  will  claim  that  it  may  seek  to 
control  the  administration  of  justice  or  influence  the  decision  of 
pending  causes. 

A  court  will,  of  course,  endeavor  to  remain  wholly  uninflu- 
enced by  publications  like  that  under  consideration,  but  will  the 
community  believe  that  it  is  able  to  do  so?  Can  it  even  bo  cer- 
tain in  regard  to  itself?  Can  men  always  be  sure  of  their  mental 
l)oise?  A  timid  man  might  be  influenced  to  yield,  while  ii  com- 
bative man  would  be  driven  to  the  opposite  direction.  AVhethcr 
the  actual  influence  is  on  one  side  or  the  other,  so  fur  as  it  is  felt 
at  all,  it  becomes  dangerous  to  the  administration  of  justice. 
Even  if  a  court  is  happily  composed  of  judges  of  such  Arm  and 
equal  temper  that  they  remain  wholly  uninfluenced  in  either  di- 
rection, nevertheless  a  disturbing  element  has  been  thrown  into 
the  council  chamber,  which  it  is  the  wise  policy  of  the  law  to 
exclude. 

liegard  it  in  whatever  light  we  may,  we  can  not  but  consider 
the  article  in  question  as  calculated  to  embarrass  the  administra- 
tion of  justice,  whether  it  has  in  fact  done  so  or  not,  and,  there- 
fore, as  falling  directly  within  the  dcflnition  of  punisliablc  con- 
tempts, announced  by  this  court  in  the  case  of  Stuart  v.  T/ie 
People.  It  is  a  contempt,  because,  in  a  pending  case  of  the 
gravest  magnitude,  it  reflects  upon  the  action  of  the  court,  im- 
peaches its  integrity,  and  seeks  to  intimidate  it  by  the  threat  ci: 
popular  clamor. 


tention  to 
pion  in  tht 
in  a  pa]ter 
and  iniput 
the  niajori 
name  of  tl 
in  order  1 
shaken  in 
a  rule  agai 
think  the_; 
feeling  of 
severe  ])ui 
to  the  lini 
cccdings,  ; 
them  by  t 
cially  do 
free  from 


w 


PEOPLE  V.  WILSON. 


123 


It  iiifiy  bo  sakl  that,  as  lon^j  as  tlie  court  was  conscious  it  had 
not  liocu  friglitfuetl  Troni  its  propriety  by  the  article  in  question, 
the  wi(!er  coiirse  wouhl  have  been  to  puss  it  by  in  silence. 

So  far  as  we  are  j^ersonally  concerned,  we  shouUl  have  i)rc- 
forrod  to  do  so.  AVe  desire  no  controversy  witli  the  press.  JJut 
a  nmjurity  of  the  court  were  of  opinion  tliat  this  ]>ublicatiou 
could  not  be  disrej^arded  without  iniidelity  to  our  duty,  lint  by 
our  roliitions  to  the  bar,  to  the  suitors  in  our  court,  to  the  entire 
judiciary  of  the  state,  and  to  the  state  itself,  we  felt  constrained 
to  cull  the  persons  responsible  for  this  publication  to  account. 

It  may  further  be  said  that  this  article  couhl  do  no  pernuxnent 
injury  to  a  couri"  strong  in  the  consciousness  of  its  own  integrity, 
anil  in  the  co.ifidence  reposed  in  it  by  the  people,  and,  therefore, 
the  publication  was  unworthy  of  notice.  It  is  quite  true  that  a 
solitary  ])aragrai)h,  under  ordinary  circumstances,  woidd  have 
])rol)iihly  been  innocuous.  It  is  to  bo  observed,  however,  that 
the  answers  of  the  respondents  speak  of  the  existing  excitement 
in  Chicago  in  regard  to  unpunished  crime,  and  in  that  state  of 
the  public  inind  there  was  great  probability  that  this  article 
would  win  a  ready  credence  if  ])ermitted  to  go  uncliallenged. 
Public  meetings  had  been  held,  committees  had  been  appointed 
to  aid  in  the  suppression  of  crime.  The  papers  of  Chicago,  cir- 
culating throughout  the  state  and  the  northwest,  had  called  at- 
tention to  this  subject.  It  was  made  a  frequent  topic  of  discus- 
sion in  the  public  prints,  and  when,  finally,  this  article  appeared, 
in  a  paper  of  noted  sobriety  and  respectability,  containing  charges 
and  imputations  against  this  court,  which  were  simply  infamous, 
the  nnijority  of  the  court  felt  that  it  was  necessary  for  tlie  good 
name  tif  the  state,  withiri  and  without  its  borders,  and  necessary 
in  order  to  preserve  the  confidence  of  the  ])eople  wholly  un- 
shaken in  this  court,  to  request  the  attorney  general  to  move  for 
a  rule  against  these  respondents.  The  majority  of  the  court  still 
tliiidc  they  have  acted  wisely.  We  have  been  controlled  by  no 
feeling  of  personal  malignity,  and  do  not  propose  to  inflict  a 
severe  ])unishment.  We  wish  to  call  the  attention  of  the  press 
to  the  limits  which  circumscribe  their  comments  on  judicial  pro- 
ceedings, and  to  remind  them  of  the  obligations  imposed  upon 
them  by  the  great  power  which  they  confessedly  wield.  Espe- 
cially do  we  desire  to  keep  the  judicial  reputation  of  the  state 
free  from  the  appearance  of  dishonor,  and  to  prevent  the  growth 


124 


AMERICAN  CRIMINAL  REPORTS. 


n 


of  that  distrust  in  the  miiuls  of  our  own  ])eople  that  would  cer. 
tainly  follow  the  circulation  of  articles  like  the  one  under  con- 
sideration, if  ]>ermitted  to  go  unrebnked. 

The  loss  of  public  confidence  in  our  integrity  would  be  a  calani- 
ity  little  less  than  the  h)S8  of  official  integrity  itself.  Tlie  pomp 
and  circumstance  which  in  Tv.igland  aid  to  clothe  tine  courts  and 
the  law  with  dignity  and  pov.or,  r.re  not  in  consonance  with  our 
republican  form  of  government.  In  this  country  the  power  of  the 
judiciary  rests  upon  the  faith  of  the  people  in  its  integrity  and  in- 
telligence. Take  away  this  faith,  and  the  moral  influence  of  the 
courts  is  gone,  and  popular  respect  for  law  inipaired.  Law  with 
us  is  an  obstruction.  It  is  personified  in  the  courts  as  its  min- 
isters, but  its  efficacy  depends  upon  the  moral  convictions  of  the 
people.  When  confidence  in  the  courts  is  gone,  respect  for  the 
law  itself  will  speedily  disappear,  and  society  will  become  the  prey 
of  fraud,  violence  and  crime. 

The  one  element  in  government  and  society  Vvducli  the  Ameri- 
can people  desire  above  all  things  else,  to  keep  free  from  the  taint 
of  suspicion,  is  the  administration  of  justice  in  the  courts.  So 
long  as  this  is  kept  pure,  a  community  may  undergo  extreme  mis- 
government,  and  still  prosper.  I*nt  when  these  tribunals  have 
become  corrupt,  and  public  confidence  in  them  is  destroyed,  tlie 
last  calamity  has  come  upon  a  people,  and  the  object  of  its  social 
or^  '.lization  has  failed.  The  protection  of  life,  liberty  and  prop- 
erty is  the  final  aim  of  all  government.  This  is  accomjdished 
by  an  honest  administration  of  just  laws.  The  people,  by  their 
representatives,  may  be  relied  U])on  to  pass  such  laws,  but  unless 
they  are  honestly  administered,  neither  life,  liberty  nor  property 
enjoys  the  security  which  it  is  the  object  of  government  and  so- 
ciety to  give.  If  the  time  shall  unhajipily  ever  come  when  the 
judiciary  of  this  state  has  become  hopelessly  corrui)t,  and  justice 
is  bought  and  sold,  the  loss  of  its  moral  and  material  well  being 
will  as  certainly  follow  as  the  night  follows  the  day. 

AVe  are  glad  to  say,  that  for  more  than  half  a  century  the  ju- 
diciary oi  this  state  has  not  only  enjoyed  the  confidence  of  the 
people,  but  also  has  received  the  su])port  of  the  press.  Never 
before,  sp  far  as  the  members  of  the  court  are  aware,  has  the  in- 
tegrity of  this  tribunal  been  assailed  by  a  public  jourind.  The 
respectibility  of  the  paper  in  which  the  article  in  question  has 
appeared,  and  the  circumstances  surrounding  its  publication, 


m, 


" 


PEOPLE  V.  WILSON. 


125 


have  given  it  a  gravity  which  a  casual  article  of  like  import 
vould  not  possess.  We  have  personally  felt  great  reluctance  to 
taking  notice  of  the  publication,  but  our  consciousness  of  the 
mischief  tliat  may  be  done  in  embarrassing  tlie  administration 
of  justice,  and  impairing  the  moral  authority  of  the  judiciary 
througliout  the  state,  if  this  article  is  to  stand  as  an  unpunished 
precedent,  has  coni]>elled  us  to  issue  the  rule,  and  now  compels 
m  to  order  an  attachment. 

It  is  the  judgment  of  a  majority  of  the  court  that  an  attach- 
ment issue  against  Charles  L.  "Wilson  and  Andrew  Shuman,  re- 
turnable forthwitli. 

Walker,  J.  I  am  also  of  the  opinion  that  a  writ  of  attach- 
ment should  issue  in  this  case. 


McAllistic.,  J.,  concurring.  At  the  return  of  the  rule  to  show 
cause,  the  defendants  did  not  appear  in  person,  but  caused  their 
separate  returns  under  oath  to  be  filed  by  attorneys,  who  declined 
to  appear  and  argue  the  question  raised  by  the  returns.  In  this 
aspect  of  the  case  it  is  unnecessary  to  consider  how  far  the  mat- 
ters set  forth  go  in  excuse  of  the  publication;  because,  if  the  de- 
fendants relied  upon  an  excuse  only,  they  should  have  appeared 
in  their  own  proper  person.  Xot  having  done  so,  no  mere  ex- 
cuse can  be  regarded  as  a  cause  for  discharging  the  rule,  but  only 
rs  going  to  tlie  question  of  punishment,  in  the  event  tluit  the 
conrt  finds  the  absence  of  a  legal  justification  in  the  return.  The 
People  V.  Frcei\  1  Caines,  519. 

Tlie  only  legal  justification  sought  to  be  establislied  by  there- 
turns  is  tlie  disavowal  of  a  bad  intent,  and  m;itter  of  law  arising 
upon  the  face  of  the  whole  proceeding.  In  this  behalf  their  posi- 
tion is  that  they  have  the  legal  right  to  do  just  what  they  have 
done,  and  this  court  has  no  power  or  authority,  by  this  proceed- 
ing, to  call  their  acts  into  question,  inquire  into  their  motives  or 
the  ]ieriiicious  tendency  of  the  puldication.  The  editor  of  the 
paper  states  his  position  thus:  "This  respondent  is  advised  and 
believes  that  the  publication  of  said  article  had  no  tendency  to 
impede,  embarrass  or  obstruct  the  administration  of  justice  in 
said  court;  that  it  was  not  so  designed  and  had  not  that  tendenc}', 
and  this  respondent  does  and  will  insist  that  he  had,  and  still 
has,  the  right,  as  managing  editor  of  said  paper,  to  examine  the 


■'  H 


126 


AMERICAN  CRIMINxVL  REPORTS 


proceedings  of  any  and  every  department  of  the  government  of 
this  state,  and  that  he  is  not  responsible  for  tlie  truth  of  sueli 
publication,  nor  for  the  motives  with  which  they  were  or  are 
made,  by  the  summary  process  of  attachment  for  contempt,  save 
when  such  publications  impede,  eml)arrass  or  obstruct  the  ad- 
ministration of  justice." 

This  position  has  been  deliberately  taken,  and  it  is  all  there  is 
of  the  case.  If  it  has  been  well  taken,  the  rule  should  be  dis- 
charged ;  if  ill,  the  attachment  should  issue.  For  the  purpose  of 
analyzing  the  alleged  justification,  we  will  treat  it  as  in  the  na- 
ture of  a  plea  in  bar.  Then  what  are  its  elements?  By  the  re- 
turn, actual  participation  in  the  act  of  publication  by  the  editor, 
and  constructive  by  the  proprietor,  are  admitted.  Then  the  only 
fact  presented  is  tlie  one  of  intent,  by  a  disavowal  of  any  bad  in- 
tent; for  the  question,  whether  or  not  the  publicatioiv  had  a  tend- 
ency or  was  calculated  to  impede,  embarrass  or  obstruct  the  ad- 
ministration of  justice,  is  clearly  a  question  of  law,  to  be  deter- 
mined by  the  court  upon  inspection  of  the  article.  So,  also,  is 
that  of  the  power  of  the  court. 

The  return  impliedly  admits,  that  if  the  publication  had  the 
tendency  to  impede,  embarrass  or  obstruct  the  administration  of 
justice,  the  power  of  the  court  to  punish  the  defendants  for  a  c(jn- 
tempt  exists;  but  it  claims  virtually  that  the  exercise  of  the  pow- 
er is  precluded  by  the  disavowal  of  any  bad  intent,  and  defend- 
ants' denial  that  the  article  had  any  such  pernicious  tendency. 
If  the  publication  had  the  pernicious  tendency  which  is  claimed 
for  it  on  behalf  of  the  people,  it  is  believed  that  no  respectable 
authority  can  be  found  to  the  effect  that  a  disavowal  of  a  had  in- 
tent amounts  to  a  justification.  It  would  be  contrary  to  the  rule 
of  law  that  every  man  must  be  presumed  to  intend  the  natural 
and  necessary  consequences  of  his  own  deliberate  acts.  In  the 
case  of  T/ie  Peoj>le  v.  Freer,  above  cited,  which  was  a  proceed- 
ing like  this,  the  point  was  expressly  adjudicated  by  the  supreme 
court  of  Xew  York,  Kent,  J.,  delivering  the  opinion  of  the  court; 
"We  cannot  but  perceive,"  said  that  great  judge,  "  that  the  dis- 
avowal of  any  bad  intent  will  not  do  away  with  the  pernicious 
tendency  or  effect  of  publications  reflecting  on  judicial  proceed- 
ings which  are  before  us." 

I  have  said  that  the  construction  and  tendency  of  the  article  in 
question  were  a  matter  of  law  for  the  court.    Of  the  truth  of  this 


propositio 
('ive  it  a  f 
ral  and  co 
construed, 
teuipt  will 
must  be  d 
circunistai 
As  to  tl: 
of  the  pul 
cle,  was  p 
Icuown  to 
by  both  hi 
its  penden 
natural  uk 
rect  and  u 
part  of  thi 
lated  and 
court  as  be 
unprincipli 
graph,  reh 
t  .-idently  r 
sedcas,  in 
order  that 
ceeds:  Tlu 
demonstra 
lute  thcmsi 
is  operatin 
clear  throi 
He  will  b( 
MMtliin  a 
for  life, 
of  all  our 
dignsition 
teen  lumdi 
nity  from 
nn'glit  be  i 
sue  of  scai 
are  now  c 
shysters  — 
ten  on  hui 


PEOPLE  V.  WILSON, 


121 


!     j( 


proposition  there  can  be  no  doubt.  But  the  court  is  bound  to 
give  it  a  fair  and  reasonable  construction,  according  to  the  natu- 
ral and  connnon  import  of  the  language  employed;  and  when  so 
construed,  the  question  whether  its  publication  constituted  a  con- 
tempt which  the  court  is  authorized  to  punish  by  attachment, 
must  be  determined  by  the  character  of  the  publication  and  the 
circumstances  under  which  it  was  made. 

As  to  the  circumstances,  it  will  suffice  to  say,  that  at  the  time 
of  the  publication,  the  case  of  Ralferty,  referred  to  in  the  arti- 
cle, was  pending  before  us  for  decision.  This  fact  was  well 
known  to  the  defendants,  and  especially  to  the  editor,  as  appears 
by  both  his  return  and  the  article  itself.  It  is  of  that  cause  and 
its  pendency  here  that  the  article  speaks ;  and  the  ordinary  and 
natural  meaning  of  the  language  used  conveys,  in  the  most  di 
rect  and  unequivocal  manner,  the  charge  of  corruption  on  tlie 
part  of  this  court,  in  respect  to  that  very  case;  and  was  calcu- 
lated and  intended  to  portray  the  character  and  position  of  the 
court  as  beinji:  sodciiraded  as  to  be  under  the  control  of  the  most 
unprincipled  and  despicable  class  of  society.  The  first  para- 
graph, relating  to  the  delay  of  the  court  in  deciding  the  case, 
c.idently  refers  to  its  action  at  the  time  of  allowing  the  super- 
sedeas, in  retjuiring  llalierty's  counsel  to  submit  the  cause,  in 
order  that  it  might  be  p.assed  upon  at  this  term.  Then  it  pro- 
ceeds: The  rifl'-ralf  who  contributed  fourteen  hundred  dollars  to 
demonstrate  that "  hanging  is  played  out "  may  now  congratu- 
late themselves  on  the  success  of  their  little  game.  Their  money 
is  operating  splendidly.  We  have  no  hesitancy  in  prophesying 
clear  through  to  the  end  just  what  will  be  done  with  liatferty. 
lie  will  be  granted  a  new  trial.  He  will  be  tried  somewhere, 
M'idiin  a  year  or  two.  He  will  be  sentenced  to  imprisonment 
for  life.  Eventually  he  will  be  pardoned  out,  and  this  in  spite 
of  all  our  public  meetings,  resolutions,  committees,  virtuous  in- 
digiKition  and  what  not.  And  why?  liecause  the  sum  of  four- 
teen hundred  dollars  is  enough  nowa-days  to  purchase  immu- 
nity from  the  consequences  of  any  crime.  Then,  that  there 
might  be  no  misunderstanding  as  to  what  is  meant  l)y  this  tis- 
sue of  scandal,  there  come  these  significant  words:  "  The  courts 
are  now  com})letely  in  the  control  of  corrupt  and  mercenaiy 
sliysters  —  the  jackals  of  the  legal  profession,  who  feast  and  fat- 
tea  on  hunuin  blood  spilled  by  the  hands  of  other  men.''     This 


i' 
I 


I       ^ 


m 


;         :■} 


'■{■mm^ 


12S 


AMERICAN  CRIMINAL  REPORTS. 


expression  would  be  understood,  and  was  intended,  to  refer  to 
tiiis  court,  wliich  was  the  only  one  previously  alluded  to;  ami 
what  more  degrading  and  scandalizing  charge  could  be  coudieil 
in  language?  It  is  well  understood  by  the  public  that  this  court 
is  the  only  one  in  the  state  which  has  the  power  to  license  and 
strike  the  names  of  attorneys  from  the  rolls.  If  the  court  is 
under  the  complete  control  of  the  vile  class  designated,  the  de- 
gradation must  be  vol  'intary  on  the  part  of  the  court,  yet  it  is 
liere  proclaimed  to  the  public  that  a  court  which  possesses  the 
power  to  rid  itself  of  the  shysters  and  jaclcals  of  the  legal  pro- 
fession is,  nevertheless,  completely  under  their  control.  After 
this  chai'ge,  is  followed  what  may  well  be  called  a  threat.  "  All 
this  must  be  remedied;  there  can  be  found  a  remedy,  and  it  must 
be  found." 

The  tendency  of  the  article  is  to  degrade  and  scandalize  the 
court,  to  overawe  its  deliberations  and  extort  a  decision  against 
the  accused.  That  such  was  the  intent  and  })urpose,  scarcely  ad- 
mits of  a  doubt.  In  this  attempt  to  extort  a  decision  of  affir- 
mance, rests  the  great  criminality  of  the  article,  rather  than  the 
reflections  ujion  tlie  court.  Publications  scandalizing  the  court, 
and  intended  to  unduly  influence  and  overawe  its  deliberations 
in  causes  pending,  are  contempts  which  this  court  is  authorized 
to  punish  by  attachment,  and  it  is  essential  to  the  dignity  of 
character,  the  utility  and  independence  of  the  court,  that  it 
should  possess  and  exercise  such  authority.  Here  the  corrup- 
tion is  imputed,  and  the  ettect  predicted  in  such  a  manner  as  to 
prepare  the  public  mind  to  believe  the  charge,  if  the  decision 
turns  out  to  be  as  i)redlcted.  Any  well  constituted  judge  would 
receive  the  threats  of  a  mob  gatliered  abuut  the  coui't  house  for 
the  purpose  of  overawing  his  deliberations  upon  a  particular 
case,  with  far  greater  coolness  and  equanimity,  than  such  a  threat- 
ened blot  upon  his  character.  AVhatever  may  be  the  character 
of  Raft'erty,  however  humble  and  lowly  in  life,  or  however  bud 
a  man  he  may  be,  he  is  nevertheless  clothed  with  the  same  con- 
stitutional rights  which  belong  to  the  highest  and  best  citizens 
in  the  state.  lie  can  be  deprived  of  his  life  only  by  due  pro- 
cess of  law.  lie  has  the  same  right  to  invoke  the  safeguards 
devised  for  the  protection  of  innocence,  and  to  secure  a  fair  and 
impartial  trial,  as  though  he  were  in  fact  innocent,  and  as  any 
other  citizen  might  do;  because  the  law  is,  and  in  the  nature  of 


i 


PEOPLE  V.  WILSON. 


129 


tilings  must  be,  general  in  its  application.  The  establishment 
of  these  riglits  by  our  beneficent  constitution  has  cost  too  much 
suil'ering  and  blood,  though  in  the  distant  past,  to  be  readily  re- 
linquished by  an  intelligent  people;  and  it  seems  an  extraordi- 
nary spectacle  to  witness  such  an  attack  upon  the  character  of 
this  Court,  acting  under  the  sanction  of  an  oath  of  office,  for  ex- 
hibiting in  its  judicial  action  a  proper  respect  for  principles 
heretofore  esteemed  so  sacred  and  so  indispensable  to  the  proper 
protection  to  life  and  liberty,  and  I  can  not  refrain  from  remark- 
ing in  this  connection,  that  if  this  publication  was  made  for  the 
purpose  of  destroying  tliose  safeguards  as  a  necessity  for  the  sup- 
pression of  the  crime  of  murder  in  Chicago,  as  is  avowed  in  the 
return,  sucli  a  purpose  ought  to  enhance  instead  of  mitigating 
tlic  criminality  of  tlie  publication.  It  would  take  a  long  time, 
in  my  judgment,  to  inspire  those  criminally  disposed,  those  born 
and  reared  in  the  haunts  of  vice,  neglected  by  parents  and  so- 
ciety, without  moral  development,  with  a  feeling  of  just  respect 
for  the  sanctity  of  human  life,  by  giving  them  examples,  fre- 
quent examples,  of  the  summary  and  reckless  violation  of  that 
sanctity,  by  the  public  authorities,  under  forms  of  law  divested 
of  all  the  consecrated  princijjles  for  the  pi'otection  of  innocence, 
by  trials  which  could  not  be  otherwise  than  grim  mockeries  of 
justice,  controlled,  swayed,  and  their  results  dictated  by  the  pas- 
sion and  popular  clamor  of  the  hour.  While  I  may  truly  say, 
that  I  have  no  feeling  of  resentment  for  the  unwarranted  at- 
tack upon  the  court  of  which  I  am  a  member,  yet  for  this  assault 
upon  institutions  which  I  have  been  educated  to  revere,  I  have 
feelings  of  deprecation  and  sorrow;  and  it  is  to  be  liclieved  that 
a  little  careful  observation  and  sober  reflection  will  lead  both  the 
people  and  the  press  of  Chicago  to  the  conclusion  that  the  fault 
lies  not  in  the  law  nor  yet  in  the  courts.  It  seldom  happens 
that  a  good  and  careful  lawyer  who  has  a  good  cause  and  wins 
it,  has  any  trouble  with  errors  in  his  record. 

It  is  an  unpleasant  duty,  but  I  feel  constrained  by  the  deep- 
est convictions  of  conscience,  by  a  lively  regard  for  the  credit  of 
the  state  and  her  institutions,  for  the  administration  of  justice, 
to  concur  in  the  opinion,  that  the  rule  should  be  made  absolute, 
and  that  an  attachment  should  issue. 


Thornton,  J.,  also  concurring. 
Vol.  1.  — 9 


A  return  has  been  made  to 


I     '"■ 


I 


130 


AMERICAN  CRIMINAL  REPORTS. 


the  rule  issued  in  this  case,  in  which  the  respondents  acknowl- 
cdi^e  tlie  publication  of  the  article,  in  the  Chicago  Evening -luur- 
nal,  and  insist  upon  the  right,  throngli  their  paper,  to  examine 
the  proceedings  of  every  department  of  the  government  of  the 
state,  and  tliai  '  ;ire  not  responsible  for  such  i>ublications, 
nor  answerab:(  ■  .h<.;  "nmmary  process  of  attachment  for  con- 
tempt, unless  iiii;  pnl/lications  impede,  embarrass  or  obstruct  the 
administration  ^f  justice.  It  is  also  urged  that  the  publication 
had  no  such  tendeiK  .'. 

Tlie  cause  pending  in  the  o on rl,  when  the  obnoxious  publica- 
tion was  made,  was  Jtafferty  v.  The  People.  liaflbrty  had  been 
found  guilty  of  murder,  in  the  court  below,  and  sentenced  to  be 
hanged.  As  was  his  right,  according  to  the  constitution  and 
laws  of  the  land,  he  demanded  of  this  court  a  calm  and  dispas- 
sionate examination  of  the  facts  and  questions  presented  in  the 
record,  and  insisted  that  the  law  had  been  violated  in  his  trial 
and  conviction. 

The  life  of  a  fellow  man  awaited  our  decision.  The  result  to 
him  was  fearful;  grave  responsil)ility  rested  upon  the  court  and 
the  counsel,  and  solemn  deliberation  was  required. 

Under  such  circumstances,  the  publication  was  made,  and  while 
the  court  was  in  session.  It  refers  to  the  court,  and  the  case  jiend- 
ing  in  it;  intimates  that  the  court  had  blandly  assured  the  ])ublic 
that  there  should  be  aspeedy  examination;  asserts  that  time  had 
sped  away,  and  no  information  had  been  given  that  anything 
definite  had  been  done;  that  the  prisoner's  counsel  was  studying 
the  policy  of  delay,  with  success,  that  the  sum  of  fourteen  hun- 
dred dollars,  contributed  to  demonstrate  that  "  hanging  is  played 
out,"  is  operating  splendidly;  that  the  prisoner  will  be  granted 
a  new  trial,  and  finally  pardoned,  in  spite  of  the  virtuous  indig- 
nation of  the  public,  "  because  the  sum  of  fourteen  bund  red  dol- 
lars is  enough  nowadays  to  enable  a  man  to  purchase  immunity 
from  the  consequences  of  any  crime,"  and  then  charges  that 
"  the  courts  are  now  completely  in  the  control  of  corrupt  and 
mercenary  shysters,  the  jackals  of  the  legal  profession,  who  feast 
and  fatten  on  human  blood,  spilled  by  the  hands  of  other  men." 
The  slight  allusion  to  the  action  of  the  legislature  cannot  relieve 
the  gross  attack  upon  the  court  and  its  officers.  The  case  re- 
ferred to  in  the  publication  has  been  reversed  by  a  unanimous 
court,  for  manifest  error  in  denying  the  accused  a  change  of 


sol,  may  I 


I 


FEOrLE  i:  WILSON. 


131 


venue,  and  thu:*,  it  may  be,  depriviiii^  him  of  an  impartial  trial, 
vouclisiifed  to  liim  by  the  constitution  and  the  laws. 

"Was  tlie  publication  a  contempt  of  court?  Or  can  there  be 
none,  excc]>t  for  disobedience  of  its  orders  or  process,  or  disor- 
derly or  contemptuous  behaviour  in  its  presence? 

The  law,  as  it  is  written,  must  answer.  In  2  Hawkins,  220, 
contempts  .are  classified,  as  contempts  in  the  face  of  the  court, 
niul  contemptuous  words  or  writings  concerning  the  court. 
Aiijain,  tliey  arc  termed  ordinary  or  extraordinary.  Tlie  latter 
cdusist  of  abusive  and  scandalous  words  respecting  the  court. 
Uouvicr's  Inst.,  vol.  4,  385.  According  to  Blackstone,  book  4, 
2S5,  tlicy  may  be  committed  cither  in  the  face  of  the  court,  or 
"by  speaking  or  writing  contemptuousl}''  of  the  court  or  judges 
acting  in  their  judicial  capacity." 

This  court  has  defined  them  to  be,  direct,  such  as  are  oflered 
in  the  presence  of  the  court,  while  sitting  judicially,  or  construc- 
tive, such,  though  not  in  its  presence,  as  tend  by  their  operation 
to  obstruct  and  embarrass  or  prevent  the  due  administration  of 
justice.    Stuart  v.  The  People,  3  Scam.,  395. 

Bisliop  thus  defines  constructive  contempts:  "According  to 
the  general  doctrine,  any  publication,  whether  by  parties,  or 
strangers,  which  concerns  a  cause  pending  in  court,  and  has  a 
tendency  to  prejudice  the  public  concerning  its  merits,  and  to 
corrupt  tlie  administration  of  justice,  or  to  reflect  on  the  tribu- 
nal or  its  proceedings,  or  on  the  parties,  the  jurors  or  the  coun- 
sel, may  be  visited  as  a  contempt."     Yol.  2,  sec.  26. 

In  this  state  the  constitution  has  established  the  judiciary,  and 
made  it  a  coch'dinate  department  of  the  state  government.  A 
necessary  incident  to  its  estuljlisliment  is  the  power  to  punish 
for  contempts. 

This  court  held,  in  an  early  case,  that  the  power  to  punish  for 
contempts  was  an  incident  to  all  courts  of  justice,  independent 
of  statutory  provisions.  Clark  v.  The  People,  Breese,  340. 
Courts  in  other  states  have  also  announced  the  doctrine  that  the 
power  is  inherent  in  all  courts  of  justice,  necessary  for  self  pro- 
tection, and  an  essential  auxiliary  to  the  pure  administration  of 
the  law.  United  States  v.  JVew  Bedford  Bridge,  1  Woodbury 
lit;  ]\[iiiot,  407;  State  v.  Johnson,  Brevard,  155;  Yates  v.  Laii- 
simj,  t)  Johns.,  410;  Cassart  v.  The  State,  4  Ark.,  541;  J)/'eil  v. 
The  Statr.  i  Eng.  (Ark.),  2G3;  Vnited  States  v.  JIudson,  7 


:A  ') 


w 


'f 


133 


AMERICAN  CRIMINAL  RErORTS. 


Cranch,  32.  The  statute  likewise  ajiproves  tlic  exercise  of  tlic 
power,  when  it  provides  that  the  supreme  court  "shall  have  pow- 
er to  punish  contempts  oftereil  by  any  person  to  it  while  sitting."' 
This  provision  was  in  force  July  1,  1829,  and  was  the  law  when 
the  decision  in  the  case  of  Stuart  v.  The  People,  supra,  was  ren- 
dered. The  court  then  declared  that  the  statute  "  affirms  a 
principle  inherent  in  a  court  of  justice,  to  defend  itself  when  at- 
tacked, as  the  individual  man  has  a  right  to  do  for  his  own  pres- 
ervation." The  statute  merely  affirms  a  preexistent  power,  and 
does  not  attempt  to  restrict  its  exercise  to  contempts  in  the  pres- 
ence of  the  court,  but  leaves  them  to  be  determined  by  the  prin- 
ciples of  the  common  law. 

Without  the  power,  courts  could  not  fulfill  their  responsiljlo 
duties  for  the  good  of  the  public.  They  would  lose  all  self-re- 
spect and  would  not  perform  the  duty  they  owe  to  the  state,  if 
they  failed  to  struggle  for  their  indejiendeuce  and  defend  their 
life. 

No  one  doubts  either  the  right  or  duty  of  a  court  to  punish, 
as  contempts,  rude  and  contumelious  behaviour,  breaches  of  the 
peace,  or  any  wilful  disturbance  in  its  presence. 

Whence  the  necessity  for  the  exercise  of  the  power?  It  is 
that  the  law  may  be  administered  fairly  and  impartially,  uninter- 
rupted by  any  influence  which  might  affect  the  safety  of  the  yar- 
ties,  or  the  judge  or  officers  of  the  court,  that  the  court  may  have 
that  regard  and  respect  so  essential  to  make  the  law  itself  re- 
spected, and  that  the  streams  of  justice  may  be  kcjit  clear  and 
pure. 

If  the  court  Is  scandalized  and  its  integrity  impeached,  while 
a  cause  is  pending  before  it,  if  the  counsel  arc  grossly  libeled, 
and  low  and  obscene  terms  are  applied  to  them,  which  may 
have  the  effect  to  intimidate,  the  consequences  must  be  tha  same 
as  if  direct  contempts  are  offered.  The  administration  of  tlie 
law  is  embarrassed  and  impeded,  the  passions,  often  unconsciou^:- 
ly,  are  roused,  the  rights  of  parties  are  endangered,  and  a  calm 
and  dispassionate  discussion  and  investigation  of  causes  is  pre- 
vented. 

The  authority  to  punish  for  constructive  contempts  has  ha  \ 
recognized  by  numerous  courts,  in  England  and  America.  I  shall 
merely  cite  a  few  cases;:  licsjnihlica  v.  Passmore,  3  Yeates,  -ii', 
Osivuld's  Case,  1  Dallas,  310;  People  v.  Freer,  1  Caines,  515; 


T>:nno/f< 
Wall.  C.  ( 

In  Tei\ 
brought  b 
crjuity,  in 
jiarty  to  a 
liill  was 
circulated 
tlie  respoi: 
equity  if  ( 

The  con 
court,  and 
turb  the  fi 
"  The  circ 
person  un 
honorable 
ran  table  ii 

In     /u'-^y 

writing  to 
llecting  u] 
publicatioi 
cause  depe 

In  Oswi 
as]iersions 
be  a  conte 
power  to  p 
"  nay,  that 
we  should 

In  the  c 
made  in  a 
and  was  ii 
and  to  inti 
In  the  casi 
lor,  delive 
scandalizii 
awe  their 
ished  by  a 
of  cliaracti 
soss  and  e: 

In  Unix 


r 


TEOrLE  ('.  WJLSON. 


133 


T':nnci/\<i  Caf^e,  3  Foster  (X.  IT.),  102;  IloUlngsicorth  v.  DuanCy 
Wall.  C.  C.  U.  S.,  77;    Unitol  St'ites  v.  Duane,  id.,  102. 

In  Tcnneifs  Case,  the  rcspcuuleiit  was  interested  in  a  suit 
hrouglit  by  his  son  against  one  of  tlie  defendants  in  a  bill  of 
eijuity,  in  which  suit  the  son  was  unsuccessful,  but  he  was  not  a 
jiartj  to  and  had  no  interest  in  the  suit  in  ecjuity,  and  while  the 
Mil  was  pending,  he  caused  co])ies  thereof  to  be  printed  and 
circulated  extensively.  The  bill  contained  serious  charges,  and 
the  respondent  also  said  that  he  could  stop  the  proceedings  in 
equity  if  one  thousand  dollars  were  paid  to  him. 

The  conduct  and  language  were  out  of  the  presence  of  the 
court,  and  it  was  lield  to  be  a  contempt,  and  calculated  to  dis- 
turb the  free  course  of  justice.  In  conclusion,  the  court  said: 
"  The  circulation  of  such  charges,  in  the  absence  of  proof,  by  a 
person  unconnected  with  the  f^ucstions  to  be  tried,  was  dis- 
honorable and  vindictive  in  the  In'ghest  degree,  and  an  unwai*- 
rantablo  interference  with  the  administration  of  justice." 

In  Iiespnhllca  v.  Passmore,  sujyra,  the  defendant  afiixed  a 
writing  to  a  board  in  the  exchange  room  in  the  city  tavern,  re- 
flecting upon  the  parties  to  the  suit,  and  the  court  held  that  the 
publication  of  such  a  paper  prejudiced  the  public  mind  in  a 
cause  depending  in  court,  and  was  a  contempt. 

In  Oswahrs  Case,  the  publication  in  a  newspaper,  of  wanton 
aspersions  upon  the  character  of  the  opposite  party,  was  ruled  to 
be  a  contempt,  and  Chief  Justice  McKean  said,  that  without  the 
power  to  punish  for  contempts  no  court  could  possibly  exist  — 
"nay,  that  no  contempt  could,  indeed,  be  committed  against  us, 
we  should  be  so  truly  contemptible." 

In  the  case  of  T/te  Peo2)Je  v.  Freer,  sxipra,  a  publication  was 
made  in  a  newspaper  in  regard  to  a  cause  under  investigation, 
and  was  intended  to  prejudice  the  public  mind  against  the  court, 
and  to  intimidate  it  in  its  decision  on  the  motion  for  anew  trial. 
In  the  case  of  People  v.  Croswell,  Kent,  J.,  afterwards  Chancel- 
lor, delivered  the  opinion  of  the  court,  and  said  that  publications 
scandalizing  the  courts,  or  tending  unduly  to  influence  or  over- 
awe their  deliberations,  were  contempts,  which  should  be  pun  • 
ished  by  attachment,  and  that  it  was  essential  to  their  dignity 
of  character,  their  utility  and  independence  that  they  should  pos- 
sess and  exercise  such  authority. 

In  United  States  v.  Duane,  there  was  a  publication  in  a  news- 


■I        ■:;■■; '.I 

-I    "^^dl 


'( 


131 


AMERICAN  CRIMINAL  RErORTS. 


•i      Hi 


•I ' 


.'■ 
■  i 

,3 

i  1 

r 

|iiiper,  pcnJini,'  tlie  cause,  reflecting  upon  tlie  court  and  jury. 
The  court  held  that  it  was  a  contempt,  which  had  a  tendency  to 
deter  counsel  and  intimidate  the  court,  if  they  were  susceptible 
of  intimidation. 

In  the  State  v.  Morrill,  10  Ark.,  3S4,  a  ])ublication  was  made 
in  a  newspaper,  while  the  court  was  in  session,  which,  in  tlic 
]anirna<rc  of  the  court  seemed  "  to  intimate,  by  implication,  that 
the  court  was  induced  by  bribery  to  make  the  decision  referred 
to."  It  was  regarded  as  a  contempt,  and  an  inaputation  upon 
the  purity  of  the  motives  of  the  members  of  the  court  while  act- 
ing officially  in  a  particular  case. 

In  determining  the  sufficiency  of  a  ]»lea  to  the  jurisdiction  of 
the  court.  Chief  Justice  Englioh  delivered  an  able  opinion,  ami 
held  that  the  right  to  punish  for  contempts  was  inherent  in  all 
courts  of  justice,  a  part  of  their  life  and  a  necessary  incident  to 
the  exercise  of  judicial  powers;  that  the  sectiim  in  the  bill  of 
rights,  that  "  every  citizen  may  freely  speak,  write  and  print  on 
any  subject,  being  responsible  for  the  abuse  of  that  liberty,"  gave 
the  right  to  any  citizen  to  publish  the  proceedings  and  decisinns 
of  courts,  to  comment  upon  them  freely,  discuss  their  correct- 
ness, the  fitness  or  unfitness  of  the  judges,  and  the  fidelity  with 
M'hich  they  perform  their  public  trusts;  but  not  by  defamatory 
publications,  to  degrade  the  tribunal,  destroy  public  conlidonco 
in  it,  and  thus  dispose  the  community  to  set  at  naught  its  judg- 
ments and  decrees. 

In  the  class  of  constructive  contempts,  this  court  has  said 
"would  necessarily  be  included  all  acts  calculated  to  imjiede, 
embarrass  or  obstruct  the  court  in  the  administration  of  justice. 
Such  acts  would  be  considered  as  done  in  the  presence  of  tlic 
court."    Sttiart  v.  The  People,  supra. 

The  power  is  arbitrary,  and  should  be  exercised  with  prudence 
and  moderation,  and  only  in  extreme  cases.  Indeed,  all  power 
is  arbitrary;  but  this  furnishes  no  reason  why  the  silent  poMcr 
of  a  court  should  not  be  awakened  to  restrain  wrong,  and  to 
check  the  attempt  to  destroy  all  respect  for  the  law  by  calumina- 
tion  of  its  officers,  who  are  the  channels  by  which  justice  is  con- 
veyed to  the  people. 

AVhat  is  the  nature  and  character  of  the  publication,  and  what 
is  its  tendency  and  effect? 

This  court  is  charged  impliedly,  if  not  directly,  with  bribery. 


TEOPLE  r.  WILSON. 


3 


iJO 


If  such  \ras  not  the  intent,  words  arc  useless  to  convey  an  intent. 
This  court,  and  the  canse  pending  thereiji  are  mentioned,  and  a 
new  trial  predicted,  not  because  the  law  dennvnds  it,  but  because 
iiiniuniity  i'min  crime  can  be  ])urcha8ed. 

It  is  said  that  the  money  had  been  contributed.  This  court, 
at  ilie  time,  had  the  control  of  the  cause,  and  the  ])ower  to  con- 
(leiiiu  or  acquit;  and  the  charge  is  that  it  is  so  corrupt  and  de- 
IjUficd  tliat  it  will  sell  justice  for  a  paltry  sum,  violate  a  solemn 
oath,  and  release  a  murderer  in  wilful  di.<re<:fard  of  the  law. 

The  k'i^islature  is  then  threatened  with  bitter  censure,  unless 
it  ])ruvides  the  most  summary  procedure  in  trials  for  murder, 
and  immediate  hanging  upon  conviction. 

"Wherefore  this  public  outcry  against  the  criminal  law?  The 
answer  is  given,  because  the  courts  are  now  completely  in  the 
cuiitrul  of  corrupt  members  of  the  legal  profession.  This  is 
defamatory  of  the  court,  as  well  as  the  profession,  and  particu- 
lai'ysoof  the  counsel  for  the  accused,  an  oflicer  of  this  court 
of  pure  character  and  high  standing. 

Can  't  be  pctssible  that  a  court  has  ]wwcr  to  punish  at  discre- 
tion, and  in  a  sumnuxry  mode,  by  line  and  imprisonment,  slight 
and  trivial  oiVenses  in  its  presence,  merely  temporary  in  their 
oilects,  an  undulation  of  the  quiet  surface,  and  cannot  punish 
fcr  calumny  and  defamation  and  im])eachment  of  its  integrity, 
which  tend  to  embarrass  its  action,  destroy  its  inde})endence, 
rob  it  of  its  good  name,  intimidate  it,  if  timidity  is  an  element 
in  its  constitution,  and  eventually  to  degrade  it? 

lias  it  no  jiower  to  protect  counsel  from  the  ell'ect  of  publica- 
tions, which  are  calculated  to  deter  them  from  a  bold  and  manly 
defense  of  suitors,  for  fear  of  the  denunciation  of  the  press? 

}so  man  who  values  character  more  than  riches,  and  who  has 
a  consciousness  of  his  own  integrity,  can  aspire  to  be  a  member 
of  a  court;  no  lawyer,  imbued  with  the  spirit  of  an  honorable 
profession,  and  who  appreciates  his  own  manhood,  will  practice 
in  a  Court  when  infamous  and  damning  charge.'  f.re  published 
against  them  while  a  cause  is  pending,  and  there  is  no  power  to 
stay  the  calumny  and  allbrd  protection  by  summary  punishment. 

The  exercise  of  the  power  to  punish  for  such  publications  is 
not  an  abridgement  of  the  freedom  of  the  press.  It  can  be  no 
restraint  upon  the  right  to  examine  the  proceedings  of  every 
branch  of  the  government. 


tjljw^^ 


I'  I 


130 


AMERICAN  CRIMINAL  RErORTS. 


It  is  iiM  restriction  upon  tlio  privilege,  secured  to  every  citizen 
in  ;lio  I'.ill  uf  Rif,'lits,  tliat  "evfry  person  mny  freely  speuk,  \vrito 
and  piililirtli,  on  all  subjects,  beinj,'  responsible  for  the  abuse  uf 
that  lil)erty." 

These  ri<,'hts  have  well  defined  liinitp.  Tliey  are  correlative, 
and  must  respect  other  rights.  They  are  not  independent  of  all 
control.  Even  li1)erty  is  not  unlicensed,  but  is  regulated  by  law. 
The  press  can  be  free,  in  the  broadest  sense  of  the  term,  without 
blackening  character  or  having  a  license  to  defame.  Every  man 
may  freely  speak  and  write  without  indulgence  in  slander  or 
libel.  Every  branch  of  the  government  may  be  freely  examined 
without  false  accusation,  and  unjust  charges  of  crime  against 
those  who  hold  positit)ns  of  trust.  The  truth  is  never  to  be  feared, 
and  may  always  be  spoken  and  written;  but  the  utterance  of 
wilful  and  deliberate  falsehood,  disguise  it  as  you  may  with  good 
intention!,  is  dangerous  and  cowardly,  and  deserves  i»unishment 
and  reprobation.  It  is  an  abuse  of  the  rights  guarantied  by  the 
constitution. 

This  court  has  not  the  power,  nor  the  desire  to  arrogate  it,  to 
direct  or  control  the  ])ress,  in  its  legitimate  sphere.  Ereedoni 
of  speech,  and  of  the  press,  should  be  most  jealously  guarded. 
The  utmost  latitude  should  be  allowed  for  fair,  full  and  free  re- 
view of  the  entire  action  of  the  courts.  Just  criticism  may 
assail  the  opinions,  expose  their  fallacy,  and  warn  of  their  errors. 
Tlie  opinions  of  courts  are  not  solemn  edicts,  to  be  blindly  as- 
sented to,  but  are  subject  to  calm  and  fearless  stricture.  The 
good  taste  and  severity  of  the  language  —  the  weapons  to  be  em- 
ployed—  Avhether  reason  or  ridicule,  must  be  determined  by  the 
writer.  In  po])ular  governments,  neither  the  public  action  nor 
official  opinion  of  persons,  in  positions  of  trust,  can  be  exempt 
from  condemnation  by  the  press,  or  in  the  assemblages  of  the 
peo]>le.  ]Jut  there  must  be  toleration,  for  "error  of  opinion 
shall  always  be  tolerated,  when  reason  is  left  free  to  combat  it." 
This  character  of  animadversion  should  never  be  regarded  "as  a 
contempt  of  court. 

The  freedom  of  the  press,  however,  is  fully  protected,  without 
licensing  libel  and  ribaldry,  and  charges  of  corruption  and  l)ri- 
bery,  against  courts  and  their  officers.  Whatever  the  intent 
may  be,  though  it  may  mitigate  the  offense,  it  cannot  lessen  the 
injury  to  character,  or  undo  the  mischief. 


ll'1 


TEOPLE  V.  WILSON. 


137 


The  n'tflit  of  the  respondents  mnst  1)C  conceded  to  examine  the 
proct'C'ding-s  of  every  de])artnient  of  the  government,  not  in  pas- 
sion find  with  abuse,  but  with  fiiir  and  manly  argument.  Good 
will  then  result,  error  may  be  exposed,  and  reason  will  resume 
its  swiiy.  Then  the  press  will  l)e  a  power  and  a  blessing,  and 
will  ey.ercise  its  constitutiomil  right. 

The  publication  under  consideration  is  not  criticism.  Its  ten- 
dency is  to  embarrass  the  court.  It  charges  crime,  when  none 
exists.  It  is  scandalous,  abusive,  passionate  in  tone  and  spirit. 
It  ■  'ipugns  the  integrity  of  this  court,  and  classes  the  counsel  of 
fMised  amongst  the  most  degraded  of  the  profession.  Its 
in.  ;iiarges  of  crime  are  calculated  to  disturb  the  mind  of  the 
pure  man,  and  unfit  iiim  for  the  discharge  of  arduous  and  respon- 
gible  duties.  Abuse  can  never  convince.  Passion  must  rouse 
passion. 

The  tendency  must  be  to  impair  the  usefulness  of  this  court, 
deprive  it  of  respect,  obstruct  it  in  the  due  administration  of  the 
law,  and  if  silently  submitted  to,  so  debase  it  as  to  present  it  a 
spectacle  beneath  even  contempt. 

I  concur  in  the  issuance  of  the  attachment. 


ni 


Scott,  J.,  dissenting:  Having  been  opposed  in  the  first  in- 
stance to  issuing  the  rule  to  show  cause,  I  am  of  opinion,  after 
more  mature  reflection,  that  the  rule  should  not  be  made  abso- 
lute. 

AVhatever  may  be  the  true  construction  of  the  article  set  out 
in  the  information,  the  respondents  have  both  denied  under  oath, 
any  purpose  in  its  jmblication  to  obstructor  influence  the  adminis- 
tration of  the  law,  or  .any  intention  to  reilect  upon  the  integrity  of 
any  member  of  the  court,  and  this,  it  seems  to  me,  is  all  that 
they  ought  to  be  required  to  do.  No  public  good  can  jwssibly  re- 
sult from  pressing  the  matter  further.  Independently  of  the  dis- 
claimer on  the  part  of  the  respondents,  I  am  unable  to  perceive 
how  the  article  in  question  could  in  any  manner  aft'ect,  hinder  or 
obstruct  the  administration  of  the  law  in  this  court.  The  news- 
paper in  which  the  paragraph  was  printed  was  published  in  a 
city  distant  from  the  one  where  the  court  is  now  holding  its  ses- 
sions, and  it  was  not  thrust  upon  the  attention  of  the  court  by 
the  respondents  or  any  one  else.  It  is  unlike  the  objectionable 
article  in  the  case  of  Stuart  v.  The  People^  3  Scam.,  397,  which 


'ijki 


ft 


138 


AMERICAN  CRIMINAL  REPORTS. 


i 


was  published  in  the  city  where  an  important  trial  was  pending 
before  a  jury,  and  wliich,  with  some  pro])riety,  could  be  said  to 
be  a  constructive  contempt,  committed  in  tlie  jn-esence  of  tlie 
court.  If  it  is  anything  more  than  simply  an  unjust  criticism 
on  the  court  in  reference  to  a  cause  then  pending,  the  most  un- 
favorable view  that  can  be  taken  is,  that  it  is  a  constructive  con- 
tempt, and  as  such,  it  could  not  directly  or  indirectly  all'ect  the 
administration  of  justice  in  an  appellate  court.  I  should  be  very 
unwilling  to  admit  that  it  could  have  any  such  effect.  It  seems 
to  me  that  the  majority  of  the  court  have  attached  an  undue  im- 
portance to  a  mere  newspaper  ])aragraph. 

From  an  early  period  in  the  history  of  our  jurisprudence,  the 
power  has  been  conceded  to  all  courts  of  general  jurisdiction  to 
punish,  in  a  summary  manner,  contempts  committed  in  their  ju'cs- 
ence.  The  right  rests  on  the  necessity  that  was  found  to  exist  to 
enable  courts  to  administer  the  law  without  interruption  or  im- 
proper interference,  and  to  maintain  their  own  dignity.  So  indis- 
pensable is  this  power  that  its  just  exercise,  so  far  as  it  may  he 
necessary  for  the  due  ])rotection  of  the  courts,  has  never  been 
questioned. 

The  legislature  has  provided  that  the  supreme  and  circuit 
courts  may  punish  parties  for  contempts  committed  against  them 
while  sitting,  and  it  is  a  very  grave  question  whether  it  was  not 
the  intention,  by  imi)lication  at  least,  to  limit  the  power  of 
courts  to  punish  for  contempts  to  such  as  should  be  committed 
in  their  presence.  I  am  not,  however,  unmindful  that  courts  of 
the  highest  authority  in  this  country  and  in  England  have  as- 
sumed jurisdiction  to  punish,  in  a  summary  manner  and  on  tlicir 
own  motion,  what  are  termed  constructive  contem])ts  —  such  an 
one  as  is  sought  to  be  set  forth  in  the  information  liled. 

The  exercise  of  this  extraordinary  power  by  a  court  of  final 
jurisdiction  has  ever  been  regarded  as  of  (questionable  authority, 
and  one  liable  to  great  abuse,  and  which  might  become  danger- 
ous to  the  liberty  of  the  citizen.  Its  exercise  by  the  courts  in 
this  country  has  been  tolerated  rather  than  conceded  Ijy  con- 
stitutional provisions  or  legislati.e  eiuictments.  The  objection 
proceeds  on  ihe  ground  that  the  court  ought  not  to  assume  to  l)e 
the  judge  of  the  oflfense  against  itself,  and  of  the  mode  and  meas- 
ure of  redress,  where  the  law  has  provided,  ami  where  in  the 
very  nature  of  things  there  can  be  no  mode  of  reviewing  the  ac- 


PEOPLE  V.  WILSON. 


139 


tion  of  the  court  in  the  premises.  There  has  always  existed  jeal- 
ousy agiiinst  the  exercise  of  arbitrary  power  by  any  tribunal  sup- 
posed to  be  derived  from  common  law  oorj'ces,  and  not  expressly 
granted  by  constitutions  or  laws  enacted  by  legislative  assem- 
blies. It  must  l)e  conceded  that  public  journals  have  the  right 
to  criiicise  freely  the  acts  of  all  public  otlicers  —  executive,  legis- 
lative and  j\idicial.  It  is  a  constitutional  privilege  that  even  the 
le"-i!?lature  cannot  abridge.  Such  criticism  should  always  be 
just,  and  with  a  view  to  promote  the  public  good.  In  case  the 
conduct  of  any  public  olHcor  is  wilfully  corrupt,  no  measure  of 
cunilonination  can  be  too  severe,  but  when  the  i/iisconduct  is 
simply  an  honest  eiTor  of  judgment,  the  condemnation  ought  to 
to  be  mingled  with  charity. 

The  public  have  a  profound  interest  in  the  good  name  and 
fume  of  their  courts  of  justice,  and  especially  of  tl;e  courts  of  last 
resort.  Everything  that  all'octs  the  well  being  of  organized  so- 
ciety, the  riglits  of  property  and  the  liberty  of  the  citizen,  is  sub- 
mitted to  their  iinal  decision.  The  confidence  of  the  public  in 
the  judiciary  should  not  be  wantonly  impaired.  It  is  all  im- 
portant to  the  due  and  efficient  administration  of  justice,  that 
the  courts  of  last  resort  should  possess,  in  a  full  measure,  the 
entire  confidence  of  the  people  whose  laws  they  administer.  All 
good  citizens  will  admit  that  he  who  wilfully  and  wantonly  as- 
sails the  courts  by  groundless  accusations,  and  thereby  weakens 
the  public  confidence  in  them,  commits  a  great  wrong,  not  alone 
against  the  courts,  but  against  the  people  of  the  commonwealth. 
Dut  v.lio  shall  furnish  the  remedy?  Shall  the  court  that  is  as- 
fcailed,  or  shall  the  legislative  power  of  the  state?  In  my  judg- 
ment, there  are  many  and  politic  reasons  why  the  legislative 
power  alone  should  provide  the  remedy,  if  any  shall  be  found  to 
be  necessary.  It  is  far  better  that  the  judges  of  the  courts  should 
endure  unjust  criticism,  and  even  slanderous  accusations,  than 
to  interpose,  of  their  own  motion,  to  redress  the  offense  against 
themselves,  where  the  ofiensc  comj)lained  of  is  not  committed 
in  their  immediate  presence.  It  is  a  matter  of  public  history, 
that  it  has  been  the  policy  of  the  press  in  this  country  to  uphold 
and  nnuntain  the  authority  and  dignity  of  the  courts.  If  a  con- 
trary policy  should  ever  be  inaugurated  in  this  state,  to  such  an 
extent  as  to  seriously  afi'ect  the  reputatiou  or  imjjair  the  effi- 
ciency of  the  courts  in  the  administration  of  the  law,  I  have  no 


't 


140 


AMERICAN  CRIMINAL  REPORTS. 


1  :• 
11 

doubt  that  the  legislature  will  afford  an  appropriate  remedy.  It 
was  said  by  this  court,  in  the  case  of  Stuart  v.  The  People^  m- 
pm,  tliat  respect  to  the  courts  cannot  be  compelled;  it  is  the 
voluntary  tribute  of  the  public  to  worth,  virtue  and  intelligence, 
and  while  they  are  found  on  the  judgment  seat,  so  long  and  no 
longer  will  they  retain  the  public  confidence. 

SiiKLDON,  J.,  also  dissenting:  I  do  not  concur  in  the  action  of 
the  majority  of  the  court,  in  this  case.  I  am  opposed  to  the  ex- 
ercise of  the  power  of  punishing  for  constructive  contempts, 
where  the  alleged  contenq>t  consists  merely  in  personal  asper- 
sions upon  a  court,  contained  in  a  newspaper  article,  especially 
in  the  case  of  an  appellate  court,  where  I  am  unwilling  to  admit 
that  newspaper  paragraphs  aft'ect,  or  are  calculated  to  embarrass 
the  administration  of  justice. 

Breese,  J,,  also  dissented  from  the  action  of  the  naajority  of 
the  court,  in  entering  the  rule  and  awarding  the  attachment. 

The  writ  of  attachment  awarded  by  the  court  was  issued  on 
the  6th  day  of  November,  1872,  in  the  following  form: 
"  State  of  Illinois  —  I)i  the  Siqn-oae  Court  —  Xorthern  Grand 

Division  —  September  Term,  A.  D.  1872. 

"  The  PcojyJe  of  the  State  of  Illinois  to  the  Sheriff  of  Za Salle 
County  —  Gkeetixg:  Whereas,  it  has  been  made  to  appear 
that  Charles  L.  Wilson  and  Andrew  Shumaii  have  printed  and 
published  an  article  which  has  been  adjudged  by  the  said  court, 
now  in  session  at  Ottawa,  in  the  aforesaid  county  and  state,  to 
have  been  printed  and  published  in  contempt  of  said  court  while 
so  in  session,  as  aforesaid: 

"We,  therefore,  command  you,  that  you  attach  the  said 
Charles  L.  Wilson  and  Andrew  Shuman,  so  as  to  have  their 
bodies  forthwith  before  our  said  supreme  court,  at  Ottawa,  in 
the  county  aforesaid,  to  answer  the  said  court  of  the  said  con- 
tempt, by  them  lately  committed  against  it,  as  it  is  said,  and 
further,  to  do  and  receive  what  our  said  court  shall,  in  that  be- 
half, consider.  Hereof  fail  not,  and  have  you  then  and  there 
this  writ. 

"Witness,  Charles  B.  Lawrence,  Chief  Justice  of  said  court, 
and  the  seal  thereof,  at  Ottawa,  this  Gth  day  of  iS^ovember,  in 
the  year  ot  our  Lord  one  thousand  eight  hundred  and  seventy- 
two.  W.  M.  Tatlou,  Clerk  of  the  Supreme  Court." 


!,r 


k^ 


PEOPLE  V.  WILSON. 


141 


On  the  Stli  day  of  November  the  respondents  appeared  in 
court,  in  answer  to  the  writ  of  attachment,  whereupon  the  chief 
justice  pronounced  the  following  sentence: 

You,  Charles  L.  Wilson  and  Andreio  Shiwian,  are  before  this 
court  under  an  attachment  for  contempt,  in  consequence  of  an 
article  relating  to  a  cause  pending  in  this  court,  and  published 
in  a  newspaper  of  which  you,  Charles  L.  Wilson,  are  the  propri- 
etor, and  you,  Andrew  Shuman,  are  the  chief  editor. 

In  the  opinion  delivered  by  the  majority  of  this  court,  when 
passing  upon  your  return  to  the  rule,  to  show  cause  why  an  at- 
tachment should  not  issue  against  you,  we  have  said  all  that  we 
desire  to  say  in  regard  to  the  character  of  the  publication,  and 
the  injury  which  such  publications  tend  to  cause  to  the  admin- 
istration of  justice.  It  was  then  held  that  your  answer  showed 
no  reason  why  an  attachment  should  not  issue.  It  now  only  re- 
mains to  impose  upon  you  a  penalty  for  the  offense.  It  io 
in  the  power  of  the  court,  in  cases  of  this  character,  to  punish 
by  both  fine  and  imprisonment.  We  have,  however,  no  desire 
to  intlict  a  severe  penalty.  Our  object  will  be  accomplished  if 
we  show  to  the  press  that  it  cannot  be  jjermitted  to  attempt  to 
influence  the  decision  of  cases  pending  in  the  court.  "We  are 
not  unmindful  of  the  fact  that  neither  of  j-ou  wrote  the  ob- 
jectionable article,  and  that  you,  Charles  L.  Wilson,  did  not  see 
it  before  its  publication.  AVe  shall  impose  upon  you  oidy  a 
moderate  tine,  as  we  cannot  believe  you  are  likely  to  commit 
similar  offenses  in  the  future. 

You,  Charles  L.  Wilson,  are  adjudged  to  pay  a  fine  of  $100, 
and  you,  Andreio  Shuman,  are  adjudged  to  pay  a  fine  of  8200, 
to  the  treasurer  of  this  state.  Y"ou  are  also  adjudged  to  pay  the 
costs  of  this  proceeding.  The  fine  will  be  paid  to  the  clerk  of 
this  court,  who  is  directed  to  remit  the  same  immediately  to  the 
state  treasurer,  and  procure  his  receipt  therefor,  to  be  filed  among 
the  papers  in  this  case. 

The  sheriif  will  hold  the  respondents  in  his  custody  until  the 
fine  and  costs  are  paid  to  the  clerk. 

Note.  —  The  action  of  the  supreme  court  of  Illinois,  in  this  case,  in  punish- 
ing the  proprietor  of  a  newspaper  for  an  article  that  was  pul  ilished  in  his  paper 
mtliout  iiis  knowleil{jre  or  privity,  must  be  bas(^(l  on  the  same  principle  that  has 
boon  applied  by  the  Kn<,'lish  courts  in  cases  of  criminal  prosecutions  for  libel.  In 
Walt'ora's  Speeches  of  Lord  Ei-skine  (vol.  2,  p.  'X\S)),  the  doctrine  is  thus  stated: 
"As  the  law  stands  at  present  (A.  D.  1810),  from  a  cunvut  of  authorities,  it  ia 


■  1  irifjl-fi'": 

I  Ki 

Mi 


AilERICAN  CRIMINAL  REPORTS. 


undoubtedly  not  competont  to  any  judge  trying  an  indictment  or  infonuation  for 
alibel.to  give  any  other  direction  toajuiy  thiui  that  a  publication,  tlioiiyli  iirovud 
to  have  been  sold  by  a  sciTiint,  uUhout  IcnowJedyc  of  the  via  stir,  involves  tlie 
master  in  all  the  criminal  consequences  of  the  pubhcation."    Tiiis  was  the  law,  l)\it 
before  the  presontca.se,  the  reporter  has  not  met  with  any  American  case  in  wliich 
this  docti-ine  has  been  sanctioned  or  applied,  and  it  is  believed  that  the  Anicrioui 
courts  will  be  slow  to  adopt  it.    The  true  doctrine  would  seem  to  be,  that  in  ev- 
ery case  where  one  is  sought  to  be  made  criminally  responsible  for  the  act  or  ik- 
fault  of  another,  as  in  the  case  of  master  and  sei-vant  and  husband  and  wife,  tliut 
proof  of  the  act  and  proof  of  the  relation  should  never  bo  more  than  ]>rima  facie 
evidence  of  guilt,  leaving  it  open  to  the  master  or  husband  to  show  that  the  crim- 
inal act  was  not  done  by  any  consent,  connivance,  procurement,  or  made  possible 
by  any  criminal  negligence,  on  his  part,  and  this  when  establL^^lied  shrmld  cfmsli- 
tute  a  good  defense.    Further  than  this  the  law  ought  r.ot  to  go.    The  anciiiit 
doctrine  in  criminal  prosecutions  for  libel  was  only  one  instance  of  the  wi(  keel 
and  pernicious  consequences  of  "presumptions  of  law  "as  a  means  of  proof  in 
criminal  cases.    On  tlic  subject  of  the  criminal  responsibility  of  tlu>  master  for 
the  act  of  the  servant  in  criminal  prosecutions  for  hlx'l,  the  eloipiont  Lingniigt'  of 
Lord  PJrskine  in  CuthiU's  Case,  is  worthy  of  consideration:     "In  the  cas-e  of  a 
civil  action,  tliroughout  the  whole  range  of  civil  injuries  the  master  is  always  cic- 
iHtcr  answerable  for  the  act  of  his  seiTant  or  agent;  and  accident  or  neglect  can 
therefore  be  no  answer  to  a  plaintiff  complaining  of  a  consequcnlial  wrong.    If 
the  driver  of  a  public  can-iage  mahciously  overturns  another  upon  the  roiid, 
wliilst  the  proprietor  is  asleep  in  his  bed  at  a  hundred  miles  distant,  the  i)ariy  in- 
jurmg  must  unquestionably  pay  the  damages  to  a  farthing;  but  thoiigli  such  ma- 
licious ser\-ant  might  also  be  ijidicted,  and  suffer  an  infamous  judgment,  coithi  the 
master  aho  hccomc  the  ohject  of  such  a  prosecution?    Ceutakn'i.y  not.    In  tlio 
same  manner,  partners  m  trade  are  r/c/?/// answerable  for  bills  drawn  by  one 
another,  or  by  their  agents,  drawuig  them  by  procuration,  thongii  fraudulently 
and  in  abuse  of  tlieir  tmsts.    IJut  if  the  partner  commits  a  fraud  by  forgery  or 
fictitious  ijulorsements,  so  as  to  subject  liimself  to  death,  or  other  punishment  liy 
indictment,  could  the  other  2>artiiers  be  mdicted?    To  answer  such  a  question 
here,  would  be  folly;  because  it  not  only  answers  itself  in  the  neijatire,  liut  ex- 
poses to  scorn  every  argument  wliicli  would  confound  indictments  with  civil  ac- 
tions.   Why  then  is  imntiug  and  2»ihlishing  toha  an  exception  io  even/  other 
human  act?    Why  is  a  man  to  be  answerable  criminaliter  iov  the  crime  of  liis 
servant  in  this  instance,  more  than  in  edl  other  eases?    Why  is  a  niiui  who  hap- 
pens to  have  puVilished  f„  hbel  under  circumstances  of  mere  accident,  or  if  you 
will,  from  actual  CiU-elei^sness  or  negUgence,  but  irithout  criminal  jiurjtose,  to  ho 
subjected  to  an  infamous  punishment,  and  harangued  from  a  British  bench,  as  if 
he  were  the  malignant  author  of  that  which  it  was  confessed  before  the  court  de- 
livering the  sentence,  that  he  never  had  seen  or  heard  of?    As  far  indeed  as  dam- 
ages go,  the  principle  is  intelligible  and  universal;  but  as  it  establishes  «  cWi/if, 
and  inflicts  a  punishment  which  atl'ects  character  and  imposes  disgnice,  it  is 
shockuig  to  huuumity  and  insulting  to  common  sense.    The  Court  of  ICinj^'s 
Bench,  since  I  have  been  at  the  bar  (veiy  long,  I  aduut,  before  tlio  noble  Icjnl 
pi-esided  in  it,  but  under  the  administration  of  a  truly  great  judge),  pronounced 
the  infamous  judgment  of  the  pillory  on  a  most  respectable  proprietor  of  a  news- 
paper, for  a  libel  on  the  Russian  ambassador,  copied  too,  out  of  aiiotlier  paper, 
but  which  i  ini/self  showed  to  the  court  by  the  affidavit  of  his  physician,  appeared 


PEOPLE  V.  WILSON. 


lis 


in  tiie/irst  as  well  as  in  tlio  .iccomi  papor,  whilst  the  dofomlant  was  on  his  sick  bed  in 
the  country,  (h'lirioiis  in  of  eve)'.  1  bcliovo  that  affidavit  is  still  on  the  tiles  of  the 
court.  I  have  thought  ot  itofton  —  I  have  dreamed  of  it,  and  started  from  my  sleep 
—  sunk  back  to  sleep,  and  staii^iil  from  it  again.  The  painful  recollection  of  it  I 
shall  die  witli.    How  is  this  vindicated?    From  the  siqiposcd  necessity  of  the  case." 

Following  are  additional  cases  on  constructive  contem[)ts  by  publications  retlecting 
on  courts,  and  a  fuller  statement  of  some  of  the  ciusea  cited  in  the  opinion : 

"A  person  had  been  committed  for  perjury  by  the  ,iu<lge,  who  tried  an  eject- 
ment in  which  he  was  chiimaiit,  and  in  which  the  issue  wa.s  the  question  of  lus 
identity  with  a  certain  baronet,  alleged  by  the  defendants  to  be  dead.  The  jury, 
(luring  the  defendants'  case,  had  expressed  themselves  satisfied  that  the  claimant 
wa.s  not  the  person;  ho  swore  ho  was,  and  he  elected  to  Ije  non-suited.  The 
grand  jury  at  the  central  criminal  court  found  true  bills  against  him  for  perjury 
anil  forgery;  the  prosecution  removed  the  indictments  by  certioruri  into  the  comt 
of  Queen's  Bench;  and  it  had  been  fixed,  upon  application  of  the  attorney  generid, 
tliat  the  trial  should  take  place  at  bar  next  Eastei-  tenu.  The  defendant  and  his 
friends,  an-iongst  whom  were  two  members  of  parhament  and  one  banister  at 
law,  had  held  meetings  for  the  purpose  of  obtaining  money  for  the  defense  at 
the  coming  rrial,  and  remarks  had  been  mailo  by  the  defendant  and  the  three 
friends  inentioned,  imputing  perjury  and  conspmxcy  to  the  witnesses  for  the  de- 
fense at  the  trial  of  the  ejectment,  and  prejudice  and  partiality  to  Lord  Chief 
Justice  CocKiiuuN,  who,  they  said,  had  proved  liimself  unfit  to  preside  at  the  trial 
of  the  indictments. 

"  They  also  asserted  the  innocence  of  the  defendant,  and  the  injustice  of  his 
treatment.  On  a  summons  against  the  members  of  parliament  to  show  cause 
why  they  should  not  be  punished  for  contempt,  it  wiis  held  that  the  trial  of 
these  indictments  was  a  proceedmg  of  the  court  then  pending;  that  although  the 
remarks  at  the  meetings  might  bo  the  subjects  of  a  criminal  information,  yet  the 
parties  who  made  them  might  also  be  prosecuted  summarily  for  contempt  of  court; 
that  these  remarks  indicated  an  attempt  by  means  of  vituperation,  to  deter  the 
lord  chief  justice  from  taking  any  part  in  the  trial,  and  also  by  attacks  on  the 
witnesses  themselves  to  influence  the  public  mind  and  prejudice  the  jiu^';  that 
they  unwarrantedly  interfered  with  the  even  and  ordinary  coui-se  of  justice;  that 
it  was  no  excuse  that  the  motive  or  puqiose  for  which  the  meetings  were  held  was 
justifiable,  nor  that  the  attempt  to  interfere  with  the  coui-sc  of  justice  was  in- 
etl'ectual;  that  the  proceedings  were  a  gross  contempt  of  court,  and  that  it  was 
the  duty  of  the  court  to  pnt  a  stop  to  them."    lieg. »'.  Onslow,  12  Cox  Crim.  Cases. 

In  the  matter  of  li.  F.  Moore  et  ah,  G'5  N.  C,  397,  it  appeared  that  the  re- 
spondents, who  were  att<)nieys  of  the  supreme  court,  had  signed  and  published  a 
protest  against  the  alleged  political  partisanship  of  the  judges  of  the  supreme 
court  of  North  Carolina  during  the  (dcetion  campaign  of  bSflS.  The  protest  con- 
tained this  language :  "Never  before  have  we  seen  the  judges  of  the  supreme 
court  singly  or  en  wnsse  moved  from  that  becoming  propriety  so  uidispensable  to 
secure  the  rt>spect  of  the  i)eople,  and,  throwing  iiside  the  ermine,  rush  into  the 
nuul  contest  of  politics  under  the  excitement  of  drums  and  flags.  From  the  un- 
ening  lessons  of  the  past,  we  are  assured  that  a  judge  who  openly  and  publicly 
disjiliiys  iiis  political  party  zeal  rendei-s  himself  unfit  to  hold  the  'balance  of 
justic-s'  and  that  whenever  an  occasion  may  ofl'er  to  serve  his  fcdlow-partisans, 
he  will  yield  to  the  temptation,  and  the  '  wavering  balance '  will  shako.  It  is  a 
uatund  wealcness  ui  nuxn,  that  he  who  warmly  and  publicly  identifies  liimself  with 


iU 


AMERICAN  CRIMINAL  REPORTS. 


M* 


a  political  party,  will  be  tempted  to  uphold  the  party  which  upholds  him,  and  all 
exi^eriences  teaches  us  that  a  partisan  judj,'e  cannot  be  safely  trusted  to  settle  the 
gi-eat  principles  of  a  political  constitution,  wliile  he  reads  and  studies  the  book  of 
its  laws  under  the  banners  of  a  party."  The  court  held  that  this  publication  wtis 
a  contempt  of  court,  which  they  had  an  mherent  and  constitutional  i-i^ht  to  pun- 
ish summarily,  by  striking  the  respondents  from  the  roll  of  attorneys,  althou{,'h  it 
was  admitted  by  the  court  that  the  statute  of  North  Carolina,  providing  for  the 
punishment  of  contempts  of  court,  did  not  embriuie  this  case. 

In  State  i\  Murrill,  16  Ark.,  'SSi,  which  wivs  a  proceeiliny  to  punish,  as  for  a 
contempt,  the  publisher  of  a  newspaper  for  an  article  reliectuig  on  the  court,  the 
respondent  pleaded  to  the  jurisdiction  of  the  court.  The  plea  set  up  that  the 
publication  was  not  embraced  within  the  statute  regulating  the  punishment  of 
contempts,  and  that  the  court  could  punish  no  act  a-s  a  contempt  except  such  as 
are  enumerated  in  the  statute.  To  this  plea  a  demurrer  was  interijosed  and  the 
court  sustained  the  demurrer.  The  report  of  the  case  does  not  contain  the  arti- 
cle which  was  the  subject  of  the  proceeding.  Its  character  and  the  circumstances 
under  which  it  was  publislied  can  only  be  gathered  from  the  following  language 
used  by  Chief  Justice  English  in  delivering  the  opinion  of  the  court: 

"  One  Ellis  was  lodged  in  the  jail  of  Pulaski  county,  on  a  charge  of  murder,  fail- 
ing to  give  the  bail  required  by  the  committuig  magistrate.  The  office  of  the  cir- 
cuit judge  of  the  district  in  which  the  offense  was  committetl  being  at  the  time 
vacant,  Ellis  applied  to  the  supremo  court  for  a  haheiis  corpus,  alleging  that  the 
bail  required  by  the  magistrate  was  exwssive;  that  he  wa.s  unable  to  give  it,  and 
prajdng  the  court  to  inquire  uito  the  matti;r,  and  reduce  the  amount  of  liail,  etc, 
The  writ  wiis  accorduigly  issued,  the  cause  heard  on  the  20th  of  February,  up- 
on the  testimony  produced,  and  the  court  being  of  the  opinion  that  the  ort'enso 
was  a  bailable  homicide,  ordered  the  prisoner  to  be  let  \o  bail  ujwn  a  recognizance, 
in  the  sum  of  $o,000,  •mW\  good  and  sufficient  security  for  his  appearance  at  the 
ensuing  term  of  the  Prairie  cu-cuit  court,  where  the  offense  wivs  coguizable. 
Fiiiling  to  furnish  the  bail  required,  the  jirisoner  was  remanded  to  jail,  with  the 
privilege  of  being  brought  before  the  court  again  to  enter  into  the  recognizance, 
should  he  procure  the  requisite  securities,  which  he  failed  to  do. 

"  On  the  24th  of  March  following,  and  while  the  court  was  still  in  session,  the 
defendant,  it  appears,  fi'om  motives  which  it  is  of  no  consequence  to  conjectm-e, 
published  the  article  in  question,  directly  in  reference  to  the  decision  of  the  coiut, 
upon  the  application  of  Ellis. 

"The  language  of  the  article  would  seem  to  intimate,  by  implication,  that  the 
court  was  induced  by  briber;/  to  make  the  decision  referred  to.  It  is  not  an  attack 
upon  the  private  character  or  conduct  of  the  membei-s  of  the  court,  as  men,  but 
seems  to  be  an  unputation  against  the  purity  of  their  motives  while  aciing 
officially,  as  a  court,  in  a  specified  case.  Had  the  publication  referred  to  them  as 
individuals,  or  been  confined  to  a  legitimate  discussion  of  the  con-ectness  of  their 
decisions,  in  tliat  or  any  other  case,  no  notice  wouhl  have  been  taken  of  it  officially."' 

The  court  conceded  that  the  Arkansas  statute  for  the  punishment  of  contempts 
did  not  extend  to  the  pubhcation  in  question,  but  nevertheless  held  that  the  court 
had  a  constitutional  power  to  punish  as  for  a  contempt,  for  the  publication  of  a 
libel,  made  during  a  tenn  of  the  court  in  reference  to  a  case  tlien  decided,  im- 
puting to  the  court,  officially,  bribery  in  making  the  decision  —  such  power  be- 
ing inherent  in  courts  of  justice,  springing  into  existence  upon  their  creation,  as  a 
necessary  incident  to  the  exercise  of  the  power  confeiTed  upon  them. 


i 


It  was  fiu- 
this  inhereni 
was  a  contei 

In  Hesfitd 
a  libel  suit  tl 
to  prejudice 
from  the  pro 
not  stand  a  ( 

A  rule  W£U 
liim  as  for  a 
the  whole,  w 
has  been  asc 
after  be  sum 
this  court,  ai 
unanimously 

"  It  only  r 
that  the  pres 

"It  is  cert 
no  act  of  the 
suspend  it. 
tution,  there 
heretofore  f' 
defendant  is 
mits  an  outr; 
evidence  can 
the  judges  ? 
liavior,  for  gi 
the  present  o 
satisfactorj: 
to  a  contemi 
judges,  and 
immediately, 
forms  of  a  ti 
the  party  per 
lie  justly  imp 
ingthem. 
tion;  and  we 

"Thepubl 
ing.  is  a  cont 
appeal'  upon 
On  the  oth 
paper  article, 
that  court  of 
the  court  wi 
a  mere  libel 
ing  for  the  \ 
courts,  and  t 
within  the  t*' 
lication,  as  a 

Vol. 


I 


PEOPLE  V.  WILSON. 


145 


It  was  further  lioltl  tluit  the  logislature  hail  no  power  to  abridge  or  abrogate 
this  inherent,  constitutioniJ  power  of  the  court,  and  tliat  the  article  iii  question 
was  a  contempt  of  court. 

In  Ihsjiuhlka  i\  Oswald,  1  Dall.,  343,  the  respondent,  who  was  defendiuit  in 
a  libel  suit  then  pending  in  the  court,  published  an  address  wliich  was  uitended 
to  prejudice  the  public  mind  upon  the  merits  of  the  cause,  and  insinuated  that 
from  tlie  prejudices  of  the  judges  against  him,  arising  out  of  former  trials,  he  did 
not  stand  a  chance  of  a  fair  trial. 

A  nile  was  issued  to  show  cause  why  an  attachment  should  not  issue  to  punish 
liira  as  for  a  contempt.  On  a  motion  to  discharge  the  rule,  the  court  say:  "  Upon 
the  whole,  we  consider  the  publication  in  question  as  having  the  tendency  which 
lias  been  iiscribed  to  it,  tiiat  of  prejudicing  the  public  (a  part  of  whom  must  here- 
after be  summoned  as  jurors),  \nth  respect  to  the  merits  of  a  cause  depending  in 
tills  court,  and  of  corrupting  the  administration  of  justice.  We  arc,  therefore, 
unanimously  of  opinion,  on  the  frst  point,  that  it  amounts  to  a  contempt. 

"  It  only  remains  then  to  consider  whether  the  offense  is  punishable  in  the  way 
that  the  in-esent  motion  has  proposed. 

"  It  is  certain  that  the  proceeding  l)y  attachment  is  as  old  as  the  law  itself,  and 
no  act  of  the  legislature,  or  section  of  the  constitution,  has  interposed  to  alter  or 
suspend  it.  Besides  the  sections  which  have  been  already  read  fi-om  the  consti- 
tution, there  is  another  section  which  declares  that  "  trials  by  juiy  shall  be  as 
heretofore;'' i\n(\.  surely  it  cannot  be  contended  that  the  offense  with  which  the 
defendant  is  now  chiu-ged  was  heretofore  tried  by  that  tribunal.  If  ii  man  com- 
mits an  outrage  in  the  face  of  the  court,  what  is  there  to  be  tried?  What  further 
evidence  can  be  necessary  to  convict  him  of  the  otfense  than  the  actual  view  of 
the  judges?  A  man  has  been  compelled  to  enter  into  security  for  liis  good  be- 
havior, for  giving  thf'.  lie  in  the  presence  of  the  judges  in  Westminster  Hall.  On 
tlio  present  occasion,  is  not  the  proof  from  the  inspection  of  the  paper  as  full  and 
satisfactorj- as  any  that  can  be  ottered?  And  whether  that  publication  amounts 
to  a  contempt  or  not  is  a  point  of  law,  which  after  all,  it  is  the  provinc '  of  the 
judges,  and  not  the  jurj-,  to  detennine.  Being  a  contempt,  if  it  is  not  punished 
immediately,  how  shall  the  mischief  be  corrected  ?  Leave  it  to  the  customary 
forms  of  a  trial  by  jury,  and  the  cau,se  may  be  continued  long  hi  suspense,  while 
the  party  perseveres  in  his  misconduct.  The  injurious  consequences  might  then 
1)0  justly  imputed  to  the  court  for  refusing  to  exercise  their  legal  powers  in  prevent- 
ing tliem.  For  these  reasons,  we  have  no  doubt  of  the  competency  of  our  jurisilic- 
tion;  and  we  think  that  justice  and  propriety  call  upon  us  to  proceed  by  attachment.'''' 

"The  publication  of  a  paper  to  prejudice  the  public  mind,  in  a  cause  depend- 
ing, is  a  contempt,  if  it  manifestly  refers  to  the  cause,  though  it  does  not  expressly 
appeal"  upon  the  face  of  the   writing."    liai/ard  t\  Passmore,  3  Yeates,  4-'i8. 

On  the  other  hand,  in  Ex  parte  H'lckey,  12  Miss.,  Tol,  it  was  held  that  a  news- 
paper article,  iiublishetl  during  the  session  of  a  court,  pending  the  trial  before 
that  court  of  a  prisoner  uidicted  for  murder,  charging  the  judge  presiding  over 
the  court  with  being  an  abettor  of  the  murderer,  is  not  a  contempt  of  court,  but 
a  mere  libel  upon  the  functionary.  The  court  also  held  that  the  statute  provid- 
ing for  the  punishment  of  contempt,  was  a  limitation  upon  the  power  of  the 
courts,  and  that  nothing  could  be  punished  as  a  contempt  except  what  came 
vithin  the  tenns  of  the  statute,  and  that  a  power  of  punishing  a  newspaper  pub- 
lication, as  a  constructive  contempt,  would  be  unconstitutiona'.. 

Vol.  I.-10 


I  '  ( 


•i: 


146  AMERICAN  CRIMINAL  REPORTS. 

State  vs.  Foster. 

(37  Iowa,  404.) 

EiiBEZZLEsrENT:    What  ',4  sufficient  employment— Kewlij  discovered  evi- 
dence. 

Under  an  indictment  founded  on  the  ordinary  statute  against  embezzlomont, 
evidence  chat  the  prosecutor  gave  the  prisoner  a  watcli  which  tiie  prisoner, 
as  agent  for  the  prosecutor,  was  to  trade  for  a  wagon  when  ho  could  liiul  :i 
suitable  opportunity,  luid  for  which  service  the  prosecutor  was  to  pay  tlie 
prisoner  $5.00,  shows  a  sufficient  omployniont  to  make  the  prisoner  guilty 
of  embezzlement  in  converting  the  watch  to  his  own  use. 

On  the  trial  of  an  indictment  for  embezzlement,  the  state  gave  evidence  that 
the  watch  embezzled  was  worth  $95.00.  The  prisoner  gave  no  cudoiico  on 
this  point.  After  the  trial,  it  was  discovered  that  the  watch  was  not  worth 
over  $10  or  $15.  No  negligence  appealing  on  the  part  of  the  prisoner  or 
his  counsel,  it  was  held  that  a  motion  for  a  new  trial  on  this  ground  was 
improperly  overruled. 

Beck,  C.  J.  1.  Tlie  second  count  of  the  indictment  upon 
which  the  defendant  was  convicted  cliarges  that  he,  being  "  the 
servant  and  agent  of  one  P.  B.  Furlong,  and  being  over  tlie  ago 
of  sixteen  years,  did  ....  by  virtue  of  his  said  einployuieiit, 
have,  receive,  and  take  into  his  possession  and  under  his  control, 
one  watch,  of  the  value  of  $05,  tlie  property  ....  of  P.  V>.  Fur- 
long, his  employer,  ....  and  the  said  watch  ....  without  the 
consent  of  his  said  employer,  did  feloniously  embezzle  and  fraud- 
ulently convert  to  his  own  use."  The  statute  upon  which  this 
indictment  was  found,  is  as  follows: 

"  If  any  officer,  agent,  clerk  or  servant  of  any  incorporated 
company;  or  if  any  clerk,  agent  or  servant  of  a  copartnership;  or 
of  (if)  any  person  over  the  age  of  sixteen  years,  embezzle  and 
fraudulently  convert  to  his  own  use,  or  take  and  secrete,  with 
intent  to  convert  to  his  own  use,  without  the  consent  of  his  era- 
ployer  or  master,  any  money  or  property  of  anctther,  which  has 
come  to  his  possession,  or  is  under  his  care  by  virtue  of  such 
employment,  lie  is  guilty  of  larceny,  and  shall  be  punished  ac- 
cordingly." Rev.  Stat.,§  424-1:.  There  was  evidence  tending  to 
prove  that,  by  an  agreement  between  Furlong  and  the  defendant, 
the  latter  undertook,  in  consideration  of  $5,  to  be  paid  him  by 
the  former,  to  trade  a  watch,  the  property  of  the  former,  for  a 


wagon. 


•  ■,* 


Defendant  was  to  find  some  one  owning  a  w.agon,  who 


would  tra( 
Under  tlii 
who  failed 
own  use. 
follows: 

"7.  If: 

ment  whei 
trade  it  fo 
receive  a 
avenueiits 
Furlong,  u 
plojiiient.' 
It  is  ins 
upon  whic 
or  employ 
and  Furloi 
zlement,  u 
It  is  ins 
that  the  tr 
denee  and 
tutes  an 
foundation 

It  may 
the  fpiestii 
have  been 
from  the 
tirely  simi 
was  foiHK 
the  solutio 
to  be  into 
found  thet 
years  em 
without  t 
property  o 
der  his  cai 
Tlie  woi 
accused  ai 
offense,  ai 
M'ithout  nt 
ployer"  a 


STATE  r.  FOSTER. 


147 


would  trade  it  for  a  wutcli,  and  make  the  exchange  for  Furlong. 
Under  this  agreement  the  watch  was  delivered  to  the  defendant, 
who  failed  to  make  the  trade,  and  converted  the  watch  to  his 
own  use.  The  court  instructed  the  jury  upon  this  evidence  as 
follows: 

"  7.  If  you  find  that  Furlong  and  the  accused  made  an  agree- 
ment whereby  the  accused  contracted  to  receive  the  watch  and 
trade  it  for  a  two  horse  wagon  fcjr  Furlong,  for  which  he  was  to 
receive  a  compensation  of  $5,  this  is  sufficient  to  sustain  the 
averments  that  the  defendant  was  in  the  employment  of  said 
Furlong,  and  that  he  received  the  watch  by  virtue  of  this  em- 
ployment." 

It  is  insisted  that  this  instruction  and  the  view  of  the  case 
upon  which  it  is  based  are  erroneous,  inasmuch  as  no  such  relation, 
or  employment,  is  shown  to  have  existed  between  the  accused 
and  Furlong,  as  is  a  necessary  ingredient  of  the  crime  of  embez- 
zlement, under  the  statute. 

It  is  insisted,  in  a  very  able  argument  by  defendant's  counsel, 
that  the  transaction  between  the  parties,  disclosed  by  the  evi- 
dence and  contemplated  by  the  instructions  of  the  court,  consti- 
tutes an  ordiiuiry  bailment,  and  could  not,  therefore,  be  the 
foundation  of  the  crime  of  embezzlement. 

It  may  be  suggested,  before  proceeding  to  the  discussion  of 
the  question  presented,  that  the  authorities  cited,  and  others  we 
liave  been  able  to  consult,  throw  little  light  upon  the  subject, 
from  the  fact  that  they  interpret,  and  apply  to,  statutes  not  en- 
tirely similar  to  the  law  of  this  state  under  which  the  indictment 
was  found.  Upon  the  construction  of  this  enactment  depends 
the  solution  of  the  rpiestion  before  us.  Its  language  necessary 
to  be  interpreted,  correcting  the  obvious  tyj)ographical  error 
found  therein,  is  this:  "  If  any  person  over  the  age  of  sixteen 
years  embezzle  and  fraudulently  convert  to  his  own  use,  .... 
without  the  consent  of  his  employer  or  master  any  money  or 
property  of  another  which  has  come  to  his  possession,  or  is  un- 
der his  care  by  virtue  of  his  employment,  he  is  guilty,"  etc. 

The  w^ords  indicating  the  relation  that  must  exist  between  the 
accused  and  another,  which  is  a  necessary  ingredient  of  the 
offense,  are  "employer,"  " master,"  "employment."  "We  will, 
without  notice  of  the  word  "master,"  consider  the  term  "  em- 
ployer "  and  "  employment."      They  are  not  of  the  technical 


>-M 


148 


AMERICAN  CRIMINAL  RKrORTS. 


i 

iijjli 

'i',*! 

iffi' 

i  ■  - 

i 

^B 

language  of  the  law  or  of  any  science  or  pursuit,  and  must 
therefore  he  construed  according  to  the  context  and  the  ai)prove(l 
usage  of  the  language.     Kev.  Stat.,  §  20,  p.  2. 

The  words  are  defined  as  follows:  Ent2)loyment  —  "  the  act 
of  employing  or  using.  2.  Occupation;  business.  3.  Agency 
or  service  for  another  or  for  the  puldic.  Employer — ono  who 
employs;  one  who  engages  or  keeps  in  service." 

The  verb  "employ  *'  is  defined  as  follows,  when  used  witli  a 
human  being  either  as  its  subject  or  object:  "  To  engage  in 
one's  service;  to  use  as  an  figent  or  substitute  in  transacting  l)U8i- 
ness;  to  commission  and  intrust  with  the  management  of  one's 
affairs."    AVebster. 

It  will  be  seen  from  the  definition  of  these  words  that  the 
statute  contemplates  the  relation  of  .agency,  a  contract  fi)r  ser- 
vices, whereby  the  accused  is  bound  to  do  or  perform  some- 
thing in  coimection  with  the  property  embezzled,  and  that  by 
virtue  of  such  relation  he  acquired  possession  thereof.  It  by 
no  means  appears  that  the  idea  of  bailment  or  bailee  is  exeliuled 
from  these  definitions,  but  without  following  the  thought  or  re- 
lying  upon  it,  we  will  inquire  whether  the  evidence  establishes 
a  relation  of  agency  or  service  existing  between  the  accused  and 
Furlong,  and  whether  such  relation  is  contemplated  by  the  in- 
structions above  quoted.  AVe  thiidc  it  is  in  each.  The  watch  was 
received  under  an  agreement  that  the  accused  was  to  act  for  Fur- 
long in  making  a  contract  of  sale  of  the  property,  ?'.  «?.,  excli;ing- 
ing  the  watch  for  a  wagon.  Can  it  l)e  doubted  that  any  proper 
contract  of  sale  within  the  scope  of  the  accused's  authority  wuuM 
have  bound  Furlong?  Certainly  he  wouhl  have  been  bouml 
thereby;  and  one  of  the  ingredients  of  the  transaction  creating 
it  a  binding  contract  upon  him  would  have  been  the  relation  of 
agency  existing  between  him  and  the  accused.  We  conclude  that 
the  idea  of  agency  is  clearly  expressed,  both  by  the  language  of 
the  indictment  and  instructions,  and  the  relation  is  established 
by  the  evidence,  or  rather  that  there  was  evidence  tending  to 
establish  it  rendering  the  instruction  relevant  and  ])roper,  upon 
which  the  jury  may  well  have  found  its  existence. 

AVe,  therefore,  find  no  error  upon  this  point  in  the  rulings  of 
the  court  upon  the  instructions  and  the  motion  assailing  the  in- 
dictment, because  the  facts  alleged  do  not  constitute  an  offense 
under  the  statute.     See  upon  this  point  2  AVhart.  Am.  Crini. 


Law,  g  103 

Crim.  Pra( 

A  motio 

was  overru 

Evidenc( 

in  I'  it  to  b( 

U]xm  this 

davit  and 

they  wei-e  i 

of  any  witti 

as  to  the  Vi 

contradicts 

that  the  wa 

$15.    It  dot 

erly  attrihu 

evidence  of 

in  fact  the  i 

were  unable 

do  so. 

The  at  tor 
newly  disco 
thewitnessc 
chiiracter  ol 
was  said  by 
exercise  of 
on  an  atten 
state's  witn 
The  impc 
upon  a  fact 
a  felony  to 
For  the  e 
a  new  trial 
judgment  u 

Note.  — W 
for  a  particula 
can  be  said  to 
the  fraudulent 
tion  in  most  A 
is  no  embezzle 
"  Another  poir 


,1: 1 


STATE  V.  FOSTER. 


149 


I    '^ 


Law,  §1030;  T/u;  Pcoj^le  v.  J)((lton,U  "Wend.,  581;  3,  Arch. 
Crim.  Pi'iic.  and  PI.,  45(»,  444  and  notes. 

A  motion  for  a  new  trial  Itecansoof  newly  discovered  evidence 
was  ovcrrnled.     "NVe  think  it  slionld  have  been  snstaincd. 

Evidence  as  to  the  character  of  the  watch  and  its  value,  show- 
ing' it  to  be  worth  .^0.5,  was  given  hy  the  state.  No  evidence 
uiHtii  this  point  was  introduced  by  the  accnsed.  His  (»wn  atH- 
(lavit  and  that  of  his  counsel,  we  think,  show  the  fact  that 
they  were  not  in  possession  at  the  time  of  the  trial,  of  the  names 
of  any  witnesses  hy  whom  the  evidence  on  the  part  of  the  state, 
as  to  the  value  and  character  of  the  prrtperty,  coidd  have  l>eeu 
contradicted.  It  is  shown  l»y  the  affidavits  of  these  witnesses 
that  the  watch  is  of  base  metal  and  only  of  the  value  of  $1<>  or 
$15.  It  does  not  appear  that  any  fault  or  negligence  can  be  prop- 
erly attributed  to  defeiulant  or  his  counsel  in  not  introducing  the 
evitleiice  of  these  or  of  other  witnesses'  upon  the  point  at  the  trial ; 
in  fact  the  showing  nnule  is  such  that  we  must  conclude  that  they 
were  unable,  from  ignorance  of  the  luimes  of  the  witnesses,  to 
do  so. 

The  attorney  general  suggests  that  the  eviilence  claimed  to  bo 
newly  discovered  is  but  cumulative,  on  the  ground  that  one  of 
the  witnesses  of  the  state  does  not  give  as  high  a  description  of  the 
character  of  the  watch  as  the  prosecuting  witness.  But  nothing 
was  said  by  him  as  to  its  value,  and  defendant's  counsel,  in  the 
exercise  of  pro])er  prudence,  may  well  have  feared  to  venture  np- 
on  an  attempt  to  establish  a  point  in  the  defense  by  one  of  the 
state's  witnesses. 

The  importance  of  the  evidence  cannot  be  questioned,  for  it  is 
upon  a  fact  which,  if  established,  would  reduce  the  offense  from 
a  felony  to  a  misdemeanor. 

For  the  error  of  the  district  court  in  overruling  the  motion  for 

a  new  trial,  on  the  ground  of  newly  discovered  evidence,  the 

judgment  is  reversed. 

Juclgme7it  reversed. 

Note.  —  Whether  or  not  money  or  property  delivered  by  the  owner  to  another 
for  a  particular  puriiose,  and  by  that  other  fi-audulontly  converted  to  his  own  use, 
can  be  said  to  be  money  or  property  received  "  by  virtue  of  an  employment,"  and 
the  fraudulent  conversion  an  embezzlement,  may  be  considered  still  an  open  ques- 
tion in  most  American  courts.  The  English  doctrine  is,  that  in  such  a  case,  there 
is  no  embezzlement,  and  Bishop  seems  to  consider  this  the  settled  law.  He  says: 
"Another  point  is,  that  the  money  or  other  tiling  must  not  come  into  the  mas- 


;-'l 


150 


AIIFJRICAX  CRIMINAL  RKPOKTS. 


tor's  posHPssion  boforo  it  Joea  into  tho  servant's;  for  if  it  ilocs,  tlio  tiikinjr  of  it, 
wiiftlifr  ilt'livort'd  to  the  Hcn-niit  by  tlio  muster  or  not,  is  liircony;  but  it  iim>t 
conic  directly  from  ft  third  pernon,  and  not  from  tlio  niast^n',"  i.  v.,  to  lonstituto 
cmbezzlonicnt.  2  Hiish.  Crim.  Law,  S  -Hm,  and  cascw  thm'o  titfd.  No  AnnTiiim 
cast'  is  citi'd  whieli  beaix  out  tiiis  clodrino.  On  the  contrary,  a.-*  irainti-d  out  by  Mr. 
Bixliop  in  .suivcpding  sections,  the  doctrine  in  New  York  and  in  Alabama  is  directly 
the  reveiw.  Thus  in  Louoithnl's  T^sc,  :>2  Ala.,  •''•■'^••,  it  was  licld  that  wlicitM 
draft  was  delivered  by  an  employer  to  a  clerk  which  he  was  to  present  for  acci'iit- 
nnco  and  then  return  to  his  employer,  and  failtnl  to  return  it,  but  frau(hdently  cuii- 
verted  it  to  his  own  u.se,  he  wa.s  juilty  of  enil)ezzh'ment.  So  in  New  York,  in 
People  V.  DaUoH,  If)  Wend.,  581,  it  wa.s  held  thai  where  a  tmveler  ataiiiim 
handed  a  money  letter  to  the  bar-keeper  to  mail,  and  tlio  bar-keeper,  instead  of 
mailing  it,  opened  the  letter  anil  kept  the  money,  that  he  was  jjuiltyof  embcz/lo 
mcnt.  So  in  People  v.  Nichols,  JJ  Park.  Crim.  Uep.,  579;  where  a  quantity  of 
pijjT  iron  was  delivered  to  the  defendant,  a  common  carrier,  to  transport  by  ciiiial 
from  Albany  to  Buffalo,  and  on  the  way,  at  nijjrht,  he  secretly  removed  some  from 
the  boat,  with  a  felonious  intent,  ho  was  held  to  bo  guilty  of  embezzlemtMit.  hi 
California  the  difficulties  arising  out  of  tluj  Engli.ah  doctrine  have  been  met  liy  a 
statute  which  punishes  the  embezzlement  of  property  entrustiil  to  another  as  wA\ 
as  the  embezzlement  wluch  comes  to  his  possi'ssion  by  virtue  of  his  employment. 


The  Queen  vs.  Negus. 

(2  Cr.  Cas.  Kes.,  PA.) 

Embezzlement:    "  Clerl:  or  senaiit,'''  24  and  23  Vict.,  ch.  96,  s-r.  GS. 

The  prisoner  was  engaged  by  the  pro.sccutors  to  solicit  orders  for  them,  aiul  w 
to  be  paid  by  cf)mmission  on  the  sums  received  through  his  means,    lie  L 
no  authority  to  receive  money;  but  if  any  was  paid  to  him  he  was  fortliwi 
to  hand  it  over  to  his  cmployei-s.     He  was  at  liberty  to  apply  for  onl-r- 
wherever  he  thought  most  convenient,  but  was  not  to  employ  himself  for 
any  other  pei-sons  th.an  the  prosecuto*^.    Contrary  to  his  duty  he  applied  for 
payment  of  a  certain  sum;  having  received  it,  he  applied  it  to  his  own  use, 
and  denied,  when  asked,  that  it  had  been  paid  to  him:  IlehJ,  on  the  above 
facts,  that  the  pri,soner  was  not  a  "clerk  or  servant"  within  the  meaniiij 
of  24  and  25  Vict.,  ch.  96,  sec.  68. 


Case  stated  by  the  assistant  judge  of  Middlesex  Sessions. 

The  prisoner  was  indicted  for  embezzling  £17,  as  clerk  and 
servant  to  Roape  and  others. 

Tlie  prisoner  was  engaged  by  the  prosecutors  to  solicit  onlei's 
for  thein,  and  he  was  to  be  paid  by  a  commission  on  the  smiis 
received  through  his  means.  He  had  no  authority  to  receive 
money;  but  if  any  was  paid  to  him  he  was  forthwitli  to  hand  it 
over  to  his  employers,    lie  was  at  liberty  to  apply  for  orders 


[lil.A. 

devote  li 
The  . 

''<  ir  any  o 

control  0 
[Bovir. 

self  wher 
Ec(j. 

Cr.  C, 


THE  gUEEN  V.  NEGUS. 


151 


wherever  Iio  tliou^lit  most  oouvenicnt,  but  was  not  to  cini)loy 
liiiiisclf  fi»r  iv!iy  other  persons  than  tlio  ])roseeutors.  Contrary  to 
his  duty,  he  applied  for  payment  of  the  above  sum,  and  having 
received  it  he  applied  it  to  his  own  use,  and  denied,  wlieii  asked, 
tlmt  it  had  been  paid  to  him. 

The  prisoner's  counsel  contended  that  the  prisoner  was  not  a 
clerk  or  servant  within  the  statute,  but  the  learned  judge  refused 
to  stop  the  case,  and  directed  the  jury  to  find  him  guilty. 

The  (piestion  was  whether,  upon  the  facts  stated,  the  prisoner 
WHS  a  clerk  or  servant,  and  as  such  rightly  convicted  of  embez- 
zlement.    Si'o  24  and  25  A^ict.,  ch.  DO,  sec.  08,  ante,  p.  29. 

Xo  counsel  a])j)eared  fur  the  ])risoner. 

7*'.  J>\  Li'iois,  for  the  ]irosec\ition:  Ii<'(j.  v.  Bowers,  2  Law 
Kep.,  1  C.  O.,  41,  sonaewhat  reseujbles  the  present  case,  and  is 
an  authority  in  favor  of  the  prisoner;  but  there  the  commission 
iii'ent  earrii'd  on  a  retail  trade  for  himself  at  a  shop,  and  so  could 
not  he  deemed  a  clerk  or  servant  of  the  merchant  who  supplied 
coal  for  him  to  sell. 

[Bovii.i,,  C.  J.  And  here  the  prisoner  might  apply  fen*  orders 
wherever  he  thought  most  convenient.] 

So  might  the  traveler  in  liey.  v.  Baily,  12  Cox  Cr.  C,.  50;  ho 
was    "vci'thelt'ss  held  to  be  clerk  or  servant  of  his  employers. 

[i)i.A(  Kiirn.v,  J.  For  he  was  under  their  control,  having  to 
devote  h'-^  whole  time  to  the  service.] 

The  1^  ulation  that  the  prisoner  was  not  to  employ  himself 
for  any  other  persons  than  the  prosecutors  shows  that  they  had 
control  over  him. 

[BoviLF,,  C.  J.  Ts'ot  at  all.  lie  might  go  away  to  amuse  him- 
self wherever  he  likv  d.] 

lieg.  V.  Tite,  Leigh  «fc  Cave  Cr.  C. ;  Jier/.  v.  Turner,  11  Cox. 
Cr.  C,  551,  were  also  cited. 


BoviLL,  C.  J.  'i  le  only  question  submitted  to  us  is  whether, 
on  the  facts  stated,  the  prisoner  was  a  "  clerk  or  servant,"  and, 
as  such,  rightly  convicted  of  embezzlement.  The  learned  assist- 
ant judge  of  the  court  directed  the  jury  to  find  the  prisoner 
guilty,  subject  to  this  point  being  raised. 

Generally  speaking,  I  should  say  that  the  question  whether  a 
person  is  a  clerk  or  servant  depends  on  so  many  considerations 
that  it  is  one  to  be  left  to  the  jury,  as  it  is  extremely  difficult  for 


m 


E\ 


'.-  ■■  I 


152 


AMERICAN  CRIMINAL  REPORTS. 


the  court  to  coine  to  a  satisfactory  conclusion  upon  such  a  mat- 
ter. Much  depends  on  the  nature  of  tlie  occupation  in  which 
the  individual  is  en<,'aged,  and  the  kind  of  employment,  lint  we 
have  to  see  if  thtri  was  enough  evidence  to  show  that  the  pris- 
oner  here  was  a  clerk  or  servant.  I  think  that  that  fact  is  not 
sufficiently  made  out.  What  is  a  test  as  to  the  relationship  of 
master  and  servant?  A  test  used  in  many  cases  is,  to  ascertain 
whether  the  prisoner  was  hound  to  obey  the  orders  of  his  em- 
ployer, so  as  to  he  under  his  employer's  conti-ol,  and  on  the  case 
stated,  there  <loes  not  seem  sufficient  to  show  that  he  was  subject 
to  his  etnployer's  orders,  and  bouu'l  to  devote  his  time  as  they 
should  direct.  Althoun;h  under  this  engagement  with  them,  it 
appears  he  was  still  at  liberty  to  take  orders,  or  to  abstain  from 
doing  so,  and  the  masters  had  no  power  to  control  them  in  that 
respect.  AVhere  there  is  a  salary,  that  raises  a  presumption  that 
the  person  receiving  it  is  bound  to  devote  his  time  to  the  service, 
but  when  money  is  paid  by  commission,  a  difficulty  arises,  al- 
though the  relationship  may  still  exist  where  commission  is  paid, 
as  in  ordinary  cases  of  a  traveler,  and  in  lieij.  v.  Tite,  Leigh  tfc 
Cave  Cr.  C,  29;  30  L.  J.  (M.  C),  142,  and  the  other  caso  cited. 
But  in  either  case  there  may  bo  no  such  control,  and  then  the 
relaLlonship  does  not  exist.  All  the  authorities  referred  to  seem 
to  show  that  it  is  n(.t  necessary  that  there  should  be  a  payment 
by  salary  —  for  commission  will  do  —  nor  that  the  whole  time 
should  be  em])loyed,  nor  that  the  emjiloyment  should  be  perma- 
inent  —  for  it  may  be  only  occasional,  or  in  a  single  instance  — 
if,  at  the  time,  the  prisoner  is  engaged  as  servant.  The  facts  be- 
fore us  do  not  nuike  out  what  the  prosecution  was  bound  to  prove, 
viz.,  that  the  prisoner  was  clerk  or  servant. 

Bkamwell,  B.  This  conviction  ought  to  be  quashed,  unless 
we  can  see  that  the  prisoner  on  the  facts  stated  must  have  been 
clerk  or  servant,  within  the  meaning  of  the  act  of  Parliament. 
I  am  of  opinion  that  on  the  facts  we  cannot  do  so.  Looking  to 
principle,  we  find  that  the  statute  was  intended  to  applj ,  nc>t  to 
cases  where  a  man  is  a  mere  agent,  but  where  the  relationship 
of  master  and  servant,  in  the  popular  sense  of  the  term,  may  bo 
said  to  exist.  Ein.jo,  C.  J.,  in  Reg.  v.  Bowers,  Law  Hep.  1  C.  C. 
R.,  41,  at  p.  45,  says  the  cases  decide  "  that  a  person  who  is  em- 
ployed to  get  orders  and  receive  money,  but  who  is  at  liberty  to 


■;3 


QUEEN  V.  FOULKES. 


153 


get  those  orders  and  receive  that  money  when  and  where  he 
thinks  proper,  is  not  a  clerk  or  servant  within  the  meaning  of 
the  statute."  I  think  that  is  perfectly  good  law,  consistent  with 
all  the  authorities,  and,  applied  here,  it  shows  that  the  prisoner 
WIS  not  a  clerk  or  servant  within  the  definition  there  given. 

Bi.ACKuuKX,  J.  I  am  of  the  same  opinion.  The  test  is  very 
much  this,  viz.,  whether  the  person  charged  is  nnder  the  control 
and  bound  to  obey  the  orders  of  his  master.  lie  may  be  so 
without  being  bound  to  devote  his  whole  time  to  this  service; 
but  if  bound  to  devote  his  whole  time  to  it,  that  would  be  very 
strong  evidence  of  his  being  under  control.  This  case  differs 
in  nothing  from  the  ordinary  one  of  a  commission  agency, 
except  in  the  sole  statement  that  the  prisoner  was  not  to  work 
for  others.  But  I  do  not  think  that  circumstance,  by  itself 
alone,  enables  us  to  say  that  he  wns  a  servant  of  the  prosecutors. 

Akcuibali),  J.,  concurred.  -j-^' 

IIoxYM.vx,  J.  I  agree.  The  question  was  not  left  to  the  jury 
to  decide,  and  I  cannot  satisfy  myself  that  the  relationship  of 
master  and  servant  existed  between  the  prosecutors  and  the  pris- 
oner. It  does  iH)t  api)'jar  that  the  prisoner  was  hound  to  obey 
every  single  lawful  onier.  Possibly  the  masters  might  tell  him 
to  go  somewhere,  and  he  might  justly  refuse. 

Conviction  quaslted. 

Attorneys  foi*  the  prosecution,  Allen  tC'  /Sou. 


QUKEX   vs.    FoL'LKKS. 

(2  Cr.  Cas.,  Res.  150.) 

Embezzlemicxt:    Chrk  or  seiranf. 

The  prisoner's  father  wiis  clerk  to  a  local  boaixl,  and  held  other  appointments. 
Tlie  prisoner  lived  witli  his  father,  and  assisted  Iiini  in  his  office,  and  in  tho 
business  of  tlie  boiu'd.  In  his  fatlier's  aljsi>nee,  the  prisoner  acted  for  hira 
at  the  meetings  of  the  board,  and  wlien  present,  he  assisted  liim.  The  pris- 
oner was  not  appointed  or  paid  by  the  Iward;  and  there  wiis  no  evidence 
tliat  he  received  luiy  salaiy  fi'oni  iiis  fatlier.  The  board  havin;;  occasion  to 
raise  a  loan  on  mortgage,  tlie  prisoner  inanafjfed  the  bnsiness  tor  liis  fath<?r, 
and  at  his  father's  office  received  the  money  from  the  mortf,'agces,  and  ap- 
propriati'd  a  part  of  it  to  his  own  use :  IMd.  that  there  was  evidence  that 
Uic  prisoner  Wius  a  clerk  or  servant  to  his  father,  or  employed  as  clerk  or 
Ber\'ant,  luid  was  guilty  of  cii'bezzlement  fi'om  hiin. 


1 

• 

i. 

I    ' 


154 


AMERICAN  CRIMINAL  REPORTS. 


Case  stated  by  Quaix,  J. 

The  prisoner  was  tried  at  the  last  assizes  for  Shropshire,  for 
embezzlement.    The  indictment  on  which  the  prisoner  was  tried 
contained  four  counts.     On  the  first  count  he  was  charged  that 
on  the  22d  day  of  September,  1S71,  he  was  employed  as  clerk  to 
the  local  board  of  "Whitchurch  and  Dodington,  and  received  (»00^. 
on  account  of  said  local  board,  and  did  steal  100^.,  parcel  of  the 
said  GOO/.,  the  moneys  of  the  said  local  board,  his  employers. 
On  the  second  couiit,  that  on  the  14th  of  February,  1872,  he  ein- 
bezzled  the  sum  of  100/.,  the  moneys  of  the  said  local  board, 
his  employers.     On  the  third  count,  that  on  the  22d  day  of  Sep- 
tember, 1S7I,  he  embezzled  the  sum  of  100/.,  parcel  of  a  sum  of 
GOO/.,  the  moneys  of  Charles  Foulkcs,  his  master.     On  the  fonrtli 
count,  that  on  the  14th  day  of  February,  1872,  he  embezzled  the 
sum  of  100/.,  the  moneys  of  Cliarles  Foulkes,  his  master.    Charles 
Foulkcs,  the  father  of  the  prisoner,  was  appointed  clerk  to  tlio 
local  board  of  "Whitchurch  and  .Dodington,  at  a  salary  of  40/.  a 
year,  and  continued  to  hold  such  appointment  till  his  deatli. 
Charles  Foulkes  held  various  other  appointments.     The  business 
of  the  board  was  transacted  at  his  office,  the  board  paying  him 
a  rent  for  the  use  of  it.    The  p"(&oner  lived  with  his  father,  and 
assisted  liim  in  his  office^  and  in  conducting  the  business  of  tlie 
local  board.     In  the  absence  of  his  father,  prisoner  acted  for  him 
at  the  meetings  of  the  local  board,  and  assisted  his  father  wlien 
present.     Prisoner  was  not  appointed  or  paid  by  the  local  boai-d. 
There  was  no  evidence  that  prisoner  was  paid  any  salary  by  his 
father.     The  only  evidence  was  that  he  in  fact  assisted  his  fatlier 
as  clerk,  or  servant,  or  assistant  in  his  office  as  above  described. 
In  the  year  1871,  and  while  Charles  Foulkes  was  clerk  to  the 
local  board  as  above  mentioned,  the  board  had  occasion  to  raise 
a  loan  for  the  purpose  of  building  a  market.     The  money  was 
raised  on  mortgages  of  the  local  rates.     The  prisoner  maiui^cd 
the  business  of  the  loan  for  his  father.     He  filled  in  the  usual 
form  of  mortgage,  and  either  ho  or  his  father  obtained  the  proper 
signatures  of  the  members  of  tlie  local  b'^^vd.     The  course  of  busi- 
ness was,  that  prisoner  received,  at  his    ■ther's  office,  the  money 
from  the  mortgagees,  in  exchange  for  the  mortgages,  and  jjaid  it 
into  the  "Whitchurch  and  Ellesmere  I'ank  (who  were  the  treasur- 
ers of  the  board),  to  an  account  called  the  "  market  account."     In 
the  course  of  his  employment,  he  embezzled  and  appropriated  to 


QUEEN  V.  FOULKES. 


155 


X 


liis  own  use  the  snm  of  money  mentioned  in  the  indictment.  It 
was  objected  by  the  counsel  for  tlie  prisoner,  that  lie  could  not 
be  coiiVicted  of  the  first  two  counts  of  the  indictment,  as  he  was 
not  a  clerk  or  servant  of  the  board,  nor  employed  by  the  board 
ill  that  or  any  otlier  capacity;  and  that  he  could  not  be  convicted 
oil  the  third  or  fourth  count,  as  there  was  no  evidence  that  he 
was  tlie  clerk  or  servant  of  his  fatlier,  or  was  employed  by  him 
in  that  capacity,  beyond  the  fact  that  he  assisted  liis  father,  and 
tliat  tlie  moneys  eml)ez/Jed  wore  not  the  moneys  of  Charles 
Foulkes,  but  of  the  local  board.  Tlie  prisoner  was  convicted  and 
sentenced,  but  the  learned  judge  respited  the  execution  of  the 
sentence  till  after  the  decision  of  the  court  i'l  the  case.  The 
question  for  the  court  was,  whether,  upon  the  al)ovo  facts,  the 
])risoner  could  be  jirojierly  convicted  on  any  of  the  counts  of  the 
indictinent.  The  following  cases  w^ere  cited  before  the  learned 
judge:  lit'ff.  V.  Negus,  Law  Hep.  2  C.  C,  34;  lieg.  v.  Beau- 
mont, Dears.  Cr.  C,  2T.0;  23  L.  J.  (M.  C),  u4;  Rc(j.  v.  Ti/ree, 
Law  Eep.  1  C.  C,  177,  and  the  11  and  12  Vict.,  ch.  G3,  sec.  138, 
was  referred  to  as  authorizing  the  board  (the  district  being  a 
non-corporation  district)  to  allege  that  the  property  was  the 
property  of  their  clerk. 

Jiose,  for  the  prisoner.  The  prisoner  could  not  properly  be 
convicted  of  embezzlement.  To  constitute  embezzlement  by  a 
person  "being  a  clerk,  or  servant,  or  being  employed  for  the 
])urpose  or  in  the  capacity  of  a  clerk  or  servant,"  ^  there  must  be 
a  contract  of  service  of  some  kind,  either  expressed  or  implied. 
Li  the  present  case  there  was  none,  for  the  prisoner  was  in  no 
sense  in  the  employment  of  the  local  board,  and  the  services  he 
rendered  to  his  father  were  mere  voluntary  services,  not  rendered 
in  pursuance  of  any  contract,  lie  cited  Iie:o  v.  Burton,  1  Moo. 
Cr.  C,  237;  Bex  v.  Jlettleton,  1  Moo.  Cr.  C,  259;  Beg.  v. 
Bovjcrs,  Law  Eep.,  1  C.  C,.  41;  Beg.  v.  Tyree,  Law  Rep.,  1  C. 
C,  177;  Beg.  v.  Turner,  11  Cox  Cr.  C,  651;  Beg.  v.  Colliim, 
Law  liep.,  2,  C.  C,  28;  Beg.  v.  Negus,  Law  Kep.,  2  C.  C,  34. 

No  counsel  appeared  for  the  prosecution, 

'  By  24  and  25  Vict.,  ch.  9G,  sec.  G8:  "  Whosoever  being  a  clerk  or  servant,  or 
being  employed  for  the  puqiose  or  in  the  capacity  of  a  clerk  or  servant,  shall 
fraudulently  embezzle  any  chattel,  money,  or  valuable  security  which  shall  be  de- 
livered to  or  received  or  taken  into  possession  by  him  for  or  m  the  name  or  on 
tiie  account  of  his  nia.ster  or  employer  *  *  *  shall  bo  deemed  to  have  feloni- 
ously stolen  the  same  from  his  mister  or  employer."    *    *    * 


f'l' 


5„-r  r 


156 


AMERICAN  CRIMINAL  REPORTS. 


CocKBURN,  C.  J.  I  think  there  was  evidence  on  which  the 
jiiiy  might  well  find  that  the  prisoner  either  was  a  clerk  or  ser- 
vant. The  father  held  various  offices,  and  the  ]n-isoner,  his  son, 
in  consequence  of  his  father's  illness,  or  for  other  reasons,  did 
the  duties  which  the  father  would  otherwise  have  had  to  do  hini- 
self,  or  to  employ  a  clerk  to  do.  It  is  true  there  was  no  contract 
binding  him  to  go  on  loing  those  duties.  But  the  relation  of 
master  and  servant  may  well  be  terminable  at  will,  and  while  the 
l^risoner  did  act,  he  was  a  clerk  or  servant. 

The  second  question  is,  whether  there  was  an  embezzlement. 
I  think  there  was.  The  money  was  to  be  received  by  the  fatlier, 
though  received  for  the  local  board.  He  was  the  proper  custodi- 
an of  the  money,  and  the  son  received  it  for  him.  There  was, 
therefore,  evidence  upon  both  points. 

Bramwell,  B.  I  am  of  the  same  opinion.  If  the  prisoner 
had  not  been  the  son  of  the  nuin  for  whom  he  acted,  and  had  not 
lived  with  him,  it  is  abundantly  evident  that  he  would  have  been 
a  clerk  or  servant,  and  would  have  been  entitled  to  payment 
upon  a  quaniitm  meruit.  Then  what  difference  can  his  being  a 
son  make?  It  may  affect  the  nature  of  his  remuneration,  but 
nothing  else. 

With  regard  to  the  money,  the  father  might  have  had  to  ac- 
count for  it,  but  he  was  entitled  to  receive  it  from  the  son, 
therefore  there  was  an  embezzlement. 


Agent: 


Mellor,  J.  The  only  difficulty  which  I  can  collect  that  the 
learned  judge  felt  was,  that  there  was  no  evidence  of  an  actual 
contract  of  employment.  But  there  is  clear  evidence  that  in  what 
the  prisoner  did,  he  was  a  clerk  or  servant. 

Brett,  J.  The  prisoner  undertook  to  do  things  for  his  father 
which  a  clerk  does  for  his  master,  and  to  do  them  in  a  way  a 
clerk  does  them.  Now,  assuming  that  there  was  no  contract  to 
go  on  doing  those  things,  still  as  long  as  he  did  them  with  his 
father's  agreement,  lie  was  bound  to  do  them  with  the  same 
honesty  as  a  clerk,  because  he  was  employed  as  a  clerk. 

Pollock,  B.  If  it  had  been  necessary  to  say  absolutely  that 
the  prisoner  was  a  clerk  or  servant,  I  should  have  hesitated. 


QUEEN  v.  CHRISTIAN. 


157 


But  I  think  tlie.words  "  employed  as  clerk  or  servant "  are  wider, 
and  that  there  is  evidence  to  bring  the  case  within  them. 

Conviction  affirmed. 

Attorney  for  prisoner,  G.  F.  Coolc;  for  Chandler,  Shrews- 
bury. 


;tf  :*! 


The  Queen  vs.  Christian. 
(2  Cr.  Cos.,  Res.  94.) 

Agent:    Misappropriation  of  monci/  —  Direction  in  teriting — 2iand  25  Vict., 

ch.  96,  sec.  75. 

Tlie  prisoner,  a  stock  and  share  dealer,  was  employed  by  the  prosecutrix  to  pur- 
chase securities  for  her.  He  bought  in  his  own  name,  and  received  money 
fram  her  from  time  to  time  to  cover  the  amounts  he  had  paid  or  had  to  pay 
for  the  securities.  Such  payments  wore  not  made  against  any  particular 
item,  but  in  charges  for  round  sums.  On  one  occasion  he  wrote  to  her,  "  I 
inclose  a  contract  noto  for  300/.  J.  Iwnds,  at  112,  3;56/.,"  and  the  contract 
note  ran,  "  Sold  to  Mi-s.  S.  (the  prosecutri.x),  300/.  J.,  at  112,  3:?6/.,"  and  was 
signed  by  the  prisoner.  The  prosecutrix  wrote  in  reply :  "  I  have  just  re- 
ceived your  note  and  contract  note  for  three  J.  shares,  and  inclose  a  chequo 
for  330/.  in  payment."  The  prisoner  never  paid  for  the  bonds,  but  in  viola- 
tion of  good  faith,  appropriated  to  his  own  use  the  proceeds  of  the  checiue : 
//(;/(/,  that  the  letter  of  the  prosecutrbc  was  a  direction  in  writing  to  apply 
the  proceeds  of  the  cheque  to  pay  for  the  bonds,  if  they  had  still  to  be  paid 
for,  withiji  the  meaning  of  24  and  25  Vict.,  ch.  9G,  sec.  75;  and  that  the 
prisoner  was  rightly  convicted  of  a  misdemeanor  under  that  section. 

Case  stated  by  IIonyman,  J. 

The  prisoner  was  tried  at  tlie  October  session  of  the  central 
criminal  court,  1S73,  for  converting  to  his  own  use  or  beneiit  the 
proceeds  of  a  che(|ue  for  336Z.,  with  which  he  had  been  intrusted 
as  the  agent  of  Mary  Ann  Spooner,  contrary  to  the  statute,  2-4 
and  25  Yict.,  ch.  00,  sec.  75.* 

'By  24and25  Vict.,  ch.  96,  sec.  75:  "  Whosoever  having  been  intrusted,  either 
solely  or  jointly  with  any  otlier  person,  as  a  banker,  merchant,  broker,  attorney 
or  oUier  agent,  with  any  money  or  security  for  the  pajinent  of  money,  with  any 
direction  in  writing  to  apply,  pay  or  deliver  such  money  or  security,  or  luiy  part 
thereof  respectively,  or  the  proceeds,  or  any  part  of  the  proceeds,  of  such  security 
for  any  purpose,  or  to  any  person  specified  in  such  dii*ection,  shall,  in  eolation  of 
good  faith,  and  contrary  to  the  tenns  of  such  direction,  in  anywise  convert  to  his 
own  use  or  benefit,  or  the  use  or  benefit  of  any  person  other  than  the  person  by 
whom  he  shall  have  been  so  intnisted,  such  money,  security  or  proceeds,  or  any 
part  thereof  respectively,  ....  shall  be  guilty  of  a  misdemeanor,  . . . . " 


168 


AMERICAN  CRIMINAL  REPORTS. 


The  prisoner  was  a  stock  and  share  dealer,  carrying  on  busi- 
ness  at  11  Royal  Exchange.  In  the  year  1872  a  Mrs.  Spooner, 
a  widow,  was  introduced  to  the  prisoner,  and  the  prisoner  oft'ercd 
to  make  any  investments  for  her  that  she  might  wish,  and  told 
her  that  ont  of  respect  to  her  late  husband,  he  would  not  make 
lier  any  cliarge  for  so  doing.  Between  this  time  and  the  1st  of 
^November,  1872,  the  prisoner  purchased  for  her  at  dirt'erent 
times,  a  variety  of  securities,  amounting  in  the  whole  to  1,320/., 
17s.,  Gd.,  for  doing  which  he  made  no  charge;  and,  on  the  other 
liand,  Mrs.  Spooner  from  time  to  time  made  j)aymeiits  to  the 
prisoner,  amounting  in  the  whole  to  1,880/.,  2s.,  ivL,  such  puy. 
ments  not  being  made  specifically  against  any  particular  item, 
but  in  cheques  in  round  sums. 

On  the  12th  of  November,  1872,  the  prisoner  made  the  follow- 
ing suggestion  to  Mrs.  Spooner: 

"  11  RoYAii  ExcuANGE,  London,  E.  C, 

"  November  12, 1872. 

"Amended  Scheme  of  Invp;stment. 

"  Argentine,  6  per  cent,, Price  (say)   97  (2  bonds) 191/. 

"  Austrian  Siher  Rentes,  5  per  cent.,      "  67        "        1;;4/. 

"Chilian,  6 per  cent "  103       "        OQW. 

"  Cliilian,  7  per  cent "  108  (1  bond) 10^/. 

"  Japanese,  9  per  cent "  111  (2  bonds) 222/. 

"  United  States,  5-20,  6  per  cent "  93  (5  bonds) 4{)->l. 


1,321)/. 


"Producing  89/.  per  annum. 

"Dear  Madam:  The  above  is  an  amended  scheme  of  invest- 
ment, which  I  trust  you  will  find  in  accordance  with  your  wishes. 

"Xo  doubt  it  will  be  better  to  take  advantage  of  present  lower 
quotations,  wherever  prices  have  been  af"3Cted  by  late  events,  and 
I  will  proceed  to  act  immediately  on  receiving  your  instructions 
to  that  effect. 

"I  remain,  dear  madam,  yours  truly, 

" Mrs.  Spooner,  etc.,  etc.  Y.  Cukistian." 

Mrs.  Spooner  assented  to  this,  and  on  the  llth  of  Xovemljcr, 
1872,  the  prisoner  purchased  on  her  account,  but  in  his  own 
name,  from  one  Wrenn,  a  jobber  on  the  Stock  Exchange,  the 
three  sets  of  securities  mentioned  in  the  contract  note  of  the  litli 
of  November,  1872,  hereinafter  set  out,  and  sent  to  Mrs.  Spooner 
the  following  letter  and  contract  note: 


Fob.   3. 
Fob.   3. 

Apr.  10. 
Apr.  10. 

Apr.  10. 
Apr.  17. 


QUEEN  V.  CHRISTIAN.  159 

"11  Royal  Exchange,  London,  E,  C, 

"  Ifovemler  14,  1872. 

"Dear  Madam:     1  have  much  pleasure  in  inclosing  contract 
note  for 

"200/.  Argentine 68  @  96 

"  200?.  Austrian  Sil @  %■>% 

"  $2,500,  5-20,  1867 @  ^3% 

which  I  have  every  reason  to  believe  will  pay  you  very  well,  tak- 
ing' into  consideration  their  stability.  I  hope  to  get  the  Japa- 
nese to-morrow.  liailways  —  Great  Northern,  Great  AV^estern 
and  Caledonia  —  are  all  expected  to  give  good  dividends,  and  I 
think  you  will  do  well  to  procure  a  few.  The  markets  are  on 
tlie  rise  in  consequence  of  the  bank  rate  not  having  been  altered. 
"  I  beg  to  remain,  dear  madam,  yours  most  obediently, 
"  (Signed.)  Y.  Chuistian. 

"]i[rs.  Stooner," 

"  London,  Xorcmher  14, 187L'. 
"Sold  to  Mrs.  SrooNER.  L.       s.    d. 

"  200/.  Arjrentino,  1SG8,  @  96,  net 192      0      0 

' '  200/.  Austrian  Silver  O'i)  (v)}.i 131      0      0 

"  S2,r,00,  5-20,  1867  @  9;33<i 525    18      9 

[Rkv.] 
"Y.  CniusTiAN, 
"  Stock  and  share  dealer,  11  Royal  Exchange,  E.  C.  [Stp.] 

"  Bankers  —  Bank  of  England." 

The  prices  mentioned  in  this  note  were  the  same  as  those 
afrrecd  between  the  prisoner  and  the  vendor  of  the  bonds,  etc. 
The  prisoner  did  not  disclose  his  principal,  but  said  he  was  buy- 
intr  for  a  widow  ladv. 

On  the  15th  of  November,  1872,  Mrs.  Spooner  sent  to  the 
prisoner  the  following  statement  of  account  between  herself  and 
the  prisoner: 

STATEMENT  OP  ACCOUNT. 

JSr.  L.  s.  d.  L.     s.     d. 

Ffb.   3.    200  New  South  Wales  Govt.  Stk.,  (5?  104^8',  209  5  0    

Fob.   ;3.    200  Victoria  6  per  cent.   Govt.   Stk.,   @ 

1U?«' 228  15  0    

Apr.  10.      25\VesternGiUs(A.  B.  orC),  @  17;'^...  443  15  0    

Apr.  10.        7  Imperial  Gas  (123;^/.  issue),  10/.  pd.  @ 

4p.  m 98  0  2    

Apr.  10.        8  Reuters  Tel.,  (Tf  11  ij-,  Stamp  Fee...  90  10  0    

Apr.  17.      13  Imperial  Gas  (123^/.  issue),  10/.  pd.  @ 

4p.m 182  0  0    

Stamp  and  Fee 1  2  6    


I   5.  .      '"'{ 


! 
'I 


IQQ  AMERICAN  CRIMINAL  REPORTS. 

£,_  L.  s.  d.  L.    s.    d' 

Apr.  17.          StampandFeo,  7Mnip.Gas,  Apr.  10,  ...  12  6    

Apr.  10.      25  Western  Gas,  Apr,  10 2  7  6    

Apr.22.       5  Imperial  Gius,  @  14 70  0  0    

Stamp  ami  Fee 0  10  0    

Nov.  14.    200  Artrentiiie,  1808,  @  90 192  0  0     

200  Austrian  Silver,  (?  G.")?ij 131  0  0    

*2,500  5-20,  1867,  @  93)^ '''>25  18  9    

2,175   10     ;{ 

Feb.   3.  Bychoquo 500  0  0 

Apr.lO.  By     "      600  0  0 

Apr.ll.  By     "      100  0  0 

Apr.lH.  By     "      1^6  0  0 

Apr.23.  By     "      ••    ••  500  0  0 

1,886     2    6 

Balance 282   13    9 

2.175   16    3 

Accompanied  by  tlie  following  letter: 

"  2  Pem])kuton  Teimjace,  St.  John's  Park, 
"  iTow.  ijth,  i8y2. 
"My  Dear  Siu:  —  I  inclose  a  statement  of  account,  witli  a 
cheque  for  the  balance,  \\hich  I  hope  you  will  find  correct. 
When  I  know  the  amount  of  the  Japanese,  I  will  immediately 
forward  you  a  cheque  for  the  same.  With  my  best  thanks  for 
all  your  kindness,  I  am,  yours  faitlifully, 

"  Y.  Chuistian,  Esq.  (Signed)  M.  A.  Si-ooxek." 

And  also  by  cheque  for  289Z.  13s.  9(?.,  payable  to  the  prisoner 
or  order,  and  the  prisoner,  on  the  10th  of  Xovembor,  acknowl- 
edged  the  receipt  of  the  cheque  and  account,  and  obtained  pay- 
ment of  the  former. 

On  the  27th  of  Xovember,  1872,  the  prisoner  wrote  the  fol- 
lowing letter  to  Mrs.  Spooner: 

Y.  CnRisTiAx,  it  1 1   T>  •T' 

-  „,    ,      ,  oi      n   1  11  IvovAL  Exchange, 

Stock  and  Share  Dealer,  ' 

Bankers-  "  LoNDON,  E.  C, 

Bank  of  England.  "  November  S^th,  1872. 

"  Dear  Madam:  —  I  inclose  a  contract  note  for  300Z.,  Japanese 
bonds  at  112  —  336Z. 

"  This  300Z.  was  offered  to  me  in  one  lot,  and  I  thought  myself 
fortunate  in  securing  them  for  you,  and  had  no  doubt  of  your 
ratifying  what  I  have  done.    These  Japanese  securities  are  really 


j! 


a  iirst-rate 
them  at  tl 
dilatorinesi 
to  get  then 
"Mrs.  S 

And  incl 

"Sold  to  M 

"Stocl 

"11  R( 

"Bankei 

The  pris 
from  Mr. "" 

It  was  r 
one  lot;  bii 

On  tlie  s 
ing  letter: 


"MyDk 

note  for  tl 
payment. 

"  I  am  w 
have  purch 

"  My  SOI 
if  you  will 
'Xicliolas 

"  Again 


And  alsc 

and  the  pri 

the  proceet 

On  the 

lowing  lett 

Y.  Cm 

Stock  and  !■ 

Banl 

Bank  of 

"Dear 

Vol.  I 


QUEEN  r.  CHRISTIAN. 

a  first-rate  investment,  and  will  pay  8  per  cent.  I  have  got 
them  at  the  lowest  price  of  the  day,  and  indeed,  my  apparent 
dilatoriness  in  the  matter  has  been  caused  solely  by  my  anxiety 
to  get  them  cheaper,  if  I  could.  Yours  truly, 

"Mrs.  Si'ooNKU,  etc.  (Signed)  Y.  Chkistian." 

And  inclosed  is  the  following  contract  note: 

"London,  Nov.  zyth^  1872. 
«  Sold  to  Mrs.  i\[.  A.  Spooncr  300^.,  Japanese  @  112  —  330Z.  0«.  Od. 
"Stock  and  Share  Dealer,  [Ilevenue] 

"11  Koval  Exchange,  E.  C.  Y.  Chkistian. 

"Bankers  —  Bank  of  England.  [Stamp.]" 

The  prisoner  had  on  the  same  day  bought  in  his  own  name, 
from  Mr.  Wrenn,  three  Japanese  bonds  at  112. 

It  was  not  true  that  the  300?.  was  offered  to  the  prisoner  in 
one  lot;  but  the  prisoner  asked  Mr.  Wrenn  for  these  bonds. 

On  the  same  day  Mrs.  Spooner  sent  to  the  prisoner  the  follow- 
ing letter: 

"  2  PEMnKiiTOM  TiciiKACK,  St.  Joiin's  Pakk, 

"  Nov,  27th,  1872. 
"  My  Dkar  Sir:  —  I  have  just  received  your  note  and  contract 
note  for  three  Japan  shares,  and  inclose  a  cheque  for  33G/.  in 
payment. 

"I  am  much  obliged  to  }ou,  and  perfectly  satisfied  that  you 
have  purchased  the  three  shares  for  me. 

"  ilv  son  Frank  will  be  bearer  of  this,  and  I  shall  feel  obliired 
if  you  will  kindly  give  him  any  information  you  can  about  the 
'Nicholas  Ilaihvay,'  and  the  'Share  Investment  Trust.' 
"Again  thanking  you,  in  haste, 

"  Believe  nie,  yours  faithfully, 
(Signed)  "M.  A.  Spooner." 

And  also  a  cheque  for  336?.,  payable  to  the  prisoner  or  order, 
and  the  prisoner  received  and  indorsed  the  cheque,  and  received 
the  proceeds  thereof. 

On  the  29th  of  November,  1872,  the  prisoner  wrote  the  fol- 
lowing letter  to  Mrs.  Sponer: 

c*  1      101,      T^'  1  "11  Royal  Exchange, 

stock  ana  Share  Dealer.  ' 

Hankers-  "  LONDON,  E.  C, 

Bank  of  England.  "  Noveinbcr  2gtk,  1872. 

"Dear  Madam:  —  I  have  to  acknowledge  the  receipt  of  your 
Vol.  I.- 11 


'!l!,.' 
r<k 


1G2 


AMERICAN  CRIMINAL  REPORTS. 


cheque  for  33G^.,  value  for  three  Japanese  boiuU,  wliich  I  sliuH 
have  the  pleasure  to  forward  you  innnediately  on  their  hm,, 
delivered.  I  now  inclose  two  100^.  Argentine  bonds,  of  the  ISix 
per  cent.  Loan  of  1808,  Xos.  B,  12,301)  and  1572;  and  two  buiuU 
for  lOf'O  riorins  each,  of  the  Austrian  Currency  Loan,  Nos. 
405,402  and  495,403. 

"  With  reference  to  the  latter  ])ortion  of  your  note,  I  will  at 
once  say,  I  do  not  recommend  either  the  Nicholas  Kuilwivy  or 
the  Share  Investment  Trust.  But  turning  the  matter  over,  I 
consider,  for  safety  and  profit,  a  sum  laid  out  on  Great  "Western 
or  North  Loudon  liailway  Shares  will  do  good.  For  that  \)\\r. 
pose,  liowever,  we  must  watch  the  marhct,  atid  take  advantai;o 
of  a  day  or  week  when  prices  have  declined.  But,  of  CDursc,  I 
shall  do  nothing  till  I  have  your  sanction  for  proceeding. 

"  Yours  truly, 
"Mrs.  Spooxer,  etc.  (Signed)  Y.  Cuuistiax." 

Mrs.  Spooner  never  received  either  the  2500  United  States 
bonds,  or  the  Japanese,  though  ohe  repeatedly  a]>})lied  to  the 
prisoner  for  them;  and  the  prisoner,  on  one  occasion,  told  lier 
that  the  broker  or  jobber  was  in  his  debt,  and  that  the  broker  or 
jobber  knew  that  when  he  delivered  the  bonds  the  j^risoiier 
would  deduct  from  the  price  the  amount  of  such  debt.  On  the 
Sth  of  August,  1873,  the  prisoner  offered  Mrs.  Spooner  a  com- 
position, a!id  informed  her  he  was  tiling  a  petition  for  liquida- 
tion. LTltiinately,  the  United  Stales  bonds  and  the  Japanese 
bonds,  having  been  carried  over  from  time  to  time,  by  the  order 
of  the  prisoner,  without  the  knowledge  of  Mrs.  Spooner,  were 
sold  by  the  orders  of  the  prisoner. 

The  pv'soner  never  paid  the  person  from  whom  he  bought  tlie 
United  States  and  Japanese  bonds,  for  the  same,  and  the  clieriiies 
for  280^.  13s.  dd.,  and  33(5^.,  were  paid  into  the  prisoner's  accoiuit, 
and  the  proceeds  of  such  checpies  aj)plied  by  the  prisoner  to  liis 
own  purposes. 

At  the  close  of  the  case  for  the  prosecution,  it  w.as  contended 
on  behalf  of  the  prisoner,  that  IVIrs.  Spooner's  letter  of  the  27th 
of  November,  1872,  did  not  constitute  a  sufficient  direction  in 
writing  to  apply,  pay  or  deliver  the  cheque  or  its  proceeds  for 
any  purpose  or  to  any  person  specified  in  such  direction,  within 
the  meaning  of  the  statute. 
The  learned  judge  left  the  case  to  the  jury,  but  reserved  the 


QUEEN  V.  CHRISTIAN. 


lei 


if 


aforesaid  (peation  for  the  opinion  of  the  court  of  criminal  ap- 
peal. 

The  jury  found  tlie  prisoner  f^uilty.  Tlic  question  for  the 
opinion  of  tlie  court  of  criuiiniil  appeal  was,  wlietlier  JSCrs. 
Spooner's  letter  of  the  iiTth  of  November,  1872,  cou])le(l  with  the 
])risoucr's  letter  of  that  date,  and  the  contract  note  for  the  Jap- 
anese bonds  Avas,  under  idl  the  circumstances  of  the  case,  a  suffi- 
cient direction  in  writing  within  the  statute. 

Mcteaf/d,  Q.  C.  {Collins  with  him),  for  the  prisoner.  The 
section  under  which  the  prisoner  was  indicted  was  passed  origi- 
nally to  meet  the  case  of  Hex  v.  W<iUk  (11.  &  11.),  Cr.  C,  215, 
and  it  applies  oidy  to  a  case  in  which  there  is  a  direction  to  ap- 
ply the  security  itself,  or  the  specific  moneys  received  as  its  pro- 
ceeds, in  a  particular  way.  I'ut  here  the  course  of  dealing 
between  the  parties  shows  that  the  prisoner  was  at  liberty  to  pay 
any  cliequc  received  from  the  prosecutrix  into  his  own  bankers. 
The  cheque  was  in  fact  sent  to  him  to  indemnify  him  for  any 
jiajnieut  he  had  made,  or  had  rendered  himself  liable  to  make, 
for  the  prosecutrix.  This  is  the  natural  meaning  of  the  words 
"  in  payment."    He  also  cited  lte(j.  v.  Gohle,  2  Moo.  &  Eob.,  ■425. 

Mcmh,  for  the  prosecution,  was  not  called  upon. 

IvKLLv,  C.  B.  By  the  terms  of  the  statute,  "  whosoever  having 
been  intrusted  as  a  l)anker,  merchant,  broker,  attorney,  or  other 
agent,  with  any  money,  or  security  for  the  payment  of  money, 
with  any  directicjn  in  writing  to  apply,  pay,  or  deliver  such 
money  or  security,  or  any  part  thereof,  or  the  proceeds,  or  any 
part  of  lie  proceeds  of  such  security,  for  any  purpose,  or  to  any 
person  specified  in  such  direction,  shall,  in  violation  of  good 
faith,  and  contrary  to  the  terms  of  such  direction,  convert  to  his 
own  use  such  money,  security  or  proceeds,  or  any  part  thereof," 
is  guilty  of  a  misdemeanor.  And  the  only  question  in  the  pres- 
ent case  is,  whether  the  instructions  contained  in  the  prosecu- 
trix's letter  of  the  2Tth  of  Xovember  were  a  "direction  "  within 
the  meaning  of  the  act,  and  if  so,  what  the  meaning  of  the  direc- 
tion was.  In  my  opinion,  that  letter,  when  fairly  construed, 
does  amount  to  a  direction,  and  such  a  direction  that  the  prisoner 
might  rightly  be  said  to  have  converted  the  proceeds  of  the 
cheque  to  his  own  use,  contrary  to  its  terms. 

The  prisoner  had  been  in  the  habit  of  purchasing  securities  for 


lU 


A51EUICAN  CRIMINAL  REPORT.S. 


if 


tho  prosecutrix,  nnd  receiving  cliO(|iics  from  her  in  respect  of  tlicm. 
It  does  not  very  clearly  uppeur  whether  in  all  instances  ho  pur- 
chased  in  his  own  name,  nor  is  it  very  material.  Then,  in  his 
letter  to  her  of  the  27th  of  November,  he  says:  "  I  inclose  a  con- 
tract note  for  300/.  Japanese  bonds,  at  112,  330/."  And  the  con- 
tract  note  inclosed  was  in  this  form:  "Sold  to  Airs.  M.  A. 
Spooner  300/.  Ja]>anese  at  112,  33(5/.,"  and  was  signed  by  tliu 
prisoner.  This  contract  note  and  the  letter  in  which  it  was  in. 
closed  arc  both  ambiguous.  They  might  mean  that  the  prisoiier 
liad  bought  the  bonds  and  had  got  them,  so  that  there  was  notli- 
ing  to  do  '-'it  to  hand  them  over  to  the  prosecutrix  on  payment 
by  her  of  the  price,  and  in  this  case,  her  letter  in  reply,  "  I  have 
just  received  your  note  and  contract  note  for  three  Jajian  shares, 
and  inclose  a  cheque  for  330/.  in  payment.  I  am  perfectly  satis- 
lied  that  you  have  purchased  the  three  shares  for  me,'"  iniglit 
well  mean,  "  Whereas,  you  have  bought  and  ])aid  for  the  bontU, 
you  will  receive  this  cheque  in  payment  to  yourself."  Ihit  tlie 
prisoner's  letter  might  abo  mean  that  he  had  bought  the  bonds 
in  his  own  name,  but  that  they  were  not  yet  handed  over  because 
not  paid  for;  so  that  it  was  necessary  to  get  money  to  j>ay  for 
them.  And  if  this  had  been  explicitly  stated,  then  the  prosecu- 
trix's letter  in  rej)ly  would  have  meant,  "  I  send  you  a  chc(|no 
which  you  will  either  hand  over  to  the  seller  of  tho  bonds,  or 
obtain  payment  of  it,  and  hand  the  proceeds  or  your  own  cheque 
in  lieu  of  tlicm  to  the  seller."  And  upon  this  view  the  oftcnse 
charged  would  clearly  have  been  committed. 

If,  then,  either  construction  of  the  letter  is  fairly  possible, 
must  we  not  read  it  in  the  alternative,  as  saying,  "  You  do  not 
Btate  whether  you  have  paid  for  the  bonds;  if  you  have  done  so, 
kee])  the  cheque,  if  not,  then  apply  the  money  in  payment  to  tlie 
seller,  so  that  you  may  get  the  bonds,  and  hand  them  over  to 
me? "  And  so  reading  the  letter,  and  applying  it  to  tho  state  of 
facts  that  really  existed  and  were  known  to  the  prisoner,  it  he- 
came  a  direction  to  apply  the  cheque  or  its  proceeds  in  payment 
for  the  bonds,  and  the  prisoner  was,  therefore,  rightly  convictuil. 


Blackburn,  J.  I  am  of  the  same  opinion.  Before  tiiriiing 
to  the  words  of  the  statute,  look  at  the  facts.  Tho  prisoner,  being 
an  agent  within  tho  meaning  of  the  statute  (for  as  to  that  no 
question  is  reserved),  consents  to  act  on  tho  terms  contained  iu 


QUELN  V.  CHRISTIAN. 


105 


his  firi?t  letter  (»f  tlio  12tli  Xovembi-r.     He  accortlliiyly  receives 
iiistriK'tiiiiis  to  buy,  nml  viirious  ^iecurities  are  bought.   It  seems 
iiiiniiiteriiil  to  consider  \vlietlier  any  ])rlvityof  contructwtis  estab- 
lished between  the  jjrosecntrix  and  the  sellers.    There  is  at  any 
rate  110  doubt  that  the  prisoner  must  liavo  made  himself  i)er- 
goindly  liable  to  them,  and  therefore  he  would  have  a  right,  after 
imviiK'  for  shares,  if  he  did  pay,  to  refuse  to  hand  them  over  till 
lie  was  repaid.     He  would  also  liave  a  right  to  rcfjuire  cash  be- 
foreliaiid,  so  as  to  keep  him  out  of  advances.     lu  this  state  of 
things,  lie  writes  ids  letter  of  the  27th  Xovember,  and  the  j>rus- 
ccntrix  her  answer  of  the  same  date.    Xow,  looking  at  the  facts 
ami  writing  down  what  seems  to  liave  been  her  meaning  as  to 
the  cheque,  I  have  no  doubt  as  to  what  it  must  be:  "  Inasmuch 
as  there  is  a  sum  of  330Z.  which  I  have  to  pay  to  get  the  Japan- 
cic  Iwnds,  get  the  ])roceeds  of  the  chefjuo  in  the  way  most  cou- 
veiiieiit  to  yourself  and  pay  for  the  bonds."     I  think  if  the  pris- 
oner luul  handed  over  the  checpie  itself,  or  handed  over  the  actual 
notes  received  for  it,  he  would  have  been  within  his  instructions. 
I  think  ho  would  have  been  so  also,  if  he  had  paid  it  into  his  own 
hank  lomt  jide,  for  the  pi.rj)ose  of  meeting  a  cheque  of  liis  own 
inven  to  the  seller,  although  a  hundred  things  might  intervene 
to  prevent  the  cheque  being  actually  met.     I  think,  then,  that 
the  prosecutrix's  letter  was  a  direction  to  ai)ply  the  cheque  or  its 
proceeds  to  getting  the  bonds  for  her  free  from  any  lien  or  claim 
on  the  part  of  the  seller. 

Turning,  then,  to  the  statute,  and  applying  its  words  to  the 
facts  of  the  case,  we  find  tluit  the  prisoner  was  an  agent  and  ho 
received  a  direction  in  writing  to  apply  the  cheque  or  its  pro- 
ceeds to  a  certain  purpose.  And  the  jury  liave  found  that  in 
violation  of  good  faith,  and  contrary  to  that  direction,  he  applied 
tliem  to  his  own  use.  I  have  no  doubt,  therefore,  that  he  was 
rightly  convicted. 


V  -1  * 


Lusii,  J.  The  only  question  reserved  is,  whether  Mrs.  Spoon- 
or's  letter  of  the  27th  November,  1872,  coupled  with  the  pris- 
oner's letter  of  that  date,  and  the  contract  note  for  the  Japanese 
bonds,  was,  under  all  the  circumstances  of  the  case,  a  sufficient 
direction  in  writing  within  the  statute.  And  looking  at  the 
course  of  dealing  between  the  parties,  I  think  the  natural  mean- 
ing of  the  prosecutrix's  letter  is:  "  If  you  have  not  paid  for  the 


.^ 


W 


IGQ 


AMERICAN  CRIMINAL  REPORTS. 


bonds,  use  the  clieque  or  its  proceeds  to  imy,"  and  therefore  the 
prisoner  was  rightly  convicted. 

Pollock,  B.,  and  Honyman,  J.,  concurred. 

Conviction  affirmed. 

Attorneys  for  prosecution,  Wilkinson  dj  Son;  attorney  for 
prisoner,  li.  King. 


Cory  vs.  State. 

5oGa.,236.) 

EiinE?zLE.\iEXT:    Foreign  coiyorulion  —  Mistake  in  transcript  of  imlictment, 

A  statute  against  embezzlement  from  "  any  coiporato  body  in  this  state  "  does 
not  extend  to  or  iaiehuie  foreign  corporations  doing  business  in  the  stiite 
■without  authority  of  law. 

The  transcript  of  a  count  in  an  indictment  before  the  supreme  couii  appw- 
ently  sho\vuijj  that  the  embezzlement  was  charged  as  done  '"  with  "  in.^tcail 
of  "  without "  the  consent  of  the  owner,  the  court  must  regard  the  count  us 
fatally  defective. 

Jackson,  J.  Tlie  defendant  was  indicted  as  cashier  of  tlie 
branch  office  of  the  Frcednian's  Saving  and  Trust  Coin});iny,  in 
Atlanta,  Georgia,  for  the  ofi'ense  of  embe^'.zlenient  in  secretiiii,' 
and  stealing  over  $8,000  of  money  deposited  in  said  liraneh  of- 
fice, and  the  indictment  was  framed  on  section  4121  of  the 
Code.  The  question  for  our  review  is,  whethe;*  tlie  cashier  ol: 
the  branch  office  of  said  company  in  Atlanta  is  subject  to  the 
pc'ialties  and  punishment  prescribed  in  that  section  vi  the  code, 
and  the  answer  to  that  qtiestion  depends  upon  the  answer  to  this: 
was  that  branch  bank  or  branch  office  a  corporate  body  in  thi? 
state  in  the  siinse  of  the  statute? 

1,  2.  The  Freedman's  Saving  and  Trast  Company  is  acorjiora- 
tion  chartered  by  congress  and  located  in  the  city  of  "VVasliiiigtoii. 
The  charter  gives  it  no  power  to  establioh  a  branch  anywhere, 
Xo  act  of  congress,  outside  of  its  charter,  gives  it  such  power, 
nor  lias  the  legislature  of  Georgia  granted  it  the  franchi.se  to  lo- 
cate a  branch  for  the  transaction  of  its  business  within  the  lim- 
its of  this  state.  Its  existence  as  a  corporation,  created  by  con- 
gress and  located  in  tlie  city  of  Washington,  will  be  recognized 
by  our  courts;  ]}ut  its  existence  as  a  corporate  body,  located  any- 


CORY  V.  STATE. 


1G7 


where  in  Georgia,  must  depend  upon  the  power  granted  in  its 
charter  by  congress,  or  sonic  otlier  constitutional  act  of  congress, 
or  some  statute  of  Georgia.     We  have  been  cited  to  no  such  hvw, 
iuui  we  know  of  none.     It  is  not  the  j)ol!cy  of  the  state  to  en- 
courage tlie  location  in  our  midst  of  the  branch  offices  of  foreign 
corporations,  and  the  criminal  statutes  should  not  be  so  enlarged 
by  construction  as  tu  embrace  such   branches  located  here  witli- 
out  authority  of  law.     Section  421  of  the  Code  was  designed 
to  ]>rotect  our  own  corporate  bo<lies,  chartereil  by  our  state,  and 
doing  business  litre  under  the  authority  of  tliis  state  in  the  ex- 
ercise of  franchise  granted  by  it,  and  to  punish  the  v)fficers  of 
mdi  corporations  for  embezzling  tlic  funds  thereof.     The  section 
iictiially  puts  such  corporations  upon  an  C(piality  with  the  public 
(lo[)artineiits  of  the  state  government,  and  of  the  counties,  towns 
,.    i  cities  of  the  state,  and  imposes  upon  the  officers  of  all  alike 
the    lUie  punishment,  thus  throwing  the  ii3gis  of  its  ])rotection 
around  ad  its  corporations  as  around  its  counties,  towns,  cities, 
and  the  \arious  departments  of  its  own  government.     It  reads 
thus:    "Any  officer,  servanL,  or  other  person  employed  in  any 
public  department,  station  or  office  of  governiaent  of  this  state, 
or  in  any  county,  town  or  city  of  thi:,  state,  or  in   any  bank  or 
other  corporate  body  in.  this  state,  or  any  president,  director  or 
stockholder  of  any  bank,  or  other  corporate  body  in  this  state, 
who  thall  embezzle,''  etc.     Xow  can  it  be  seriously  contended 
that  the  legislature  meant  to  include  in  this  section  a  corporate 
body  in  this  state  exorcising  franchises  here  without  her  author- 
ity, and  without  the  sarctioii  of  any  law,  state  or  federal?     Did 
she  mean  to  protect  the  exercise  of  franchises  within  her  lim- 
its, which  no  hiw  making  ])ower  recofjnized  by  her  over  granted, 
and  to  plact    such  franchises  thus  i. legally  excfised  upon  an 
ei^uality  with   tliose  granted  by  herself  iiiuUupon  an  e(piality, 
too,  with  her  own  deiiartmonts  of  the  state  government?     AV^o 
cannot  think  so;  and  if  she  did  not   so  mean  in   the  section  of 
the  code  (pioted,  and  on  which  the  indictment  is  framed,  the  de- 
fendant was  certainly  convicted   on  this  count  without  author- 
ity of  law.     It  is  vain  to  argue  that  tlie  change  of  the  words 
"of  this  state  "  when  applied  to  the  departments  of  government 
and  to  the  counties,  towns  and  cities  in  the  section  to  the  words 
"  in  this  state  "  when   applied  to   the  corporate  b<xlies  has  any 
signiticanco,    "Wherever  the  banks  are  elsewhere  referred  to  in 


^r 


mi 


1G3 


AMERICAN  CRIMINAL  REPORTS. 


this  division  of  the  code,  they  are  described  as  banks  in  this  state, 
and  in  sucli  connection  as  to  make  it  iiniuistakable  tliat  the  leiris- 
latnre  meant  banks  chartered  by  this  state.  See  Code,  sees.  4420, 
4427.  It  is  a  fundamental  principle  of  the  conunuu  law  that 
penal  statutes  sh(»uld  be  construed  strictly.  It  is  scarcely  neces- 
sary to  invoke  tin's  rule  of  construction  liere.  It  would  rciMiire 
an  extremely  lil)oral  construction  to  bring  the  officer  of  a  corpo- 
rate body  illeifally  located  in  the  state  within  the  purview  of 
this  statute. 

3,  4.  Ibit  tlicre  is  a  second  count  in  the  indictment,  and  the 
puni^]lment  under  the  second  is  the  same  as  under  the  first  count; 
it  is  therefore  said  that  the  verdict  of  gnilty,  being  eeneral,  may 
be  predicated  upon  either  count.  That  may  be  so,  and  as  we 
recognize  the  Freedman's  Saving  and  Trust  Company  as  an  arti- 
ficial person  living  in  the  city  of  AV^ashington,  and  some  of  wlio^e 
pro]ierty  may  have  got  into  Georgia,  and  somebody  entrnsteil 
with  it  here  may  have  stolen  it,  and  as  this  second  count  is 
framed  upon  section  4422  of  the  Code,  which  punishes  any  bailee 
who  thus  steals  after  a  trust,  we  do  not  see  why  this  defendant 
could  not  be  jjunished  under  the  facts  jiroven  in  this  case  under 
that  section.  AVe  regret,  therefore,  that  on  exiimining  the  tran- 
script of  the  record,  we  lind  that  this  count,  as  it  a})pears  tlicro, 
is  had,  it  being  alleged  that  the  fraudulent  conversion  of  the 
money  was  made  loltk  the  consent  of  the  owner.  Of  course  no 
crime  is  cliarged  in  such  a  count,  find  there  can  be  no  leiral  cou- 
A'iction  upon  it.  It  is  said  that  the  clerk,  in  cu})ying  the  bill  of 
indictment,  made  a  mistake  and  wrote  "with"  when  lie  should 
have  written  ''  without  tli<>  consent  of  the  owner."  This  may 
or  may  not  be  true.  It  has  not  been  verilied  to  us  in  the  only 
way  it  can  legally  be  done,  by  the  suggestion  of  a  diminution  of 
the  record  on  ur  Ijcfore  the  calling  of  the  case.  Code,  section 
42S2,  ride  !>.  Our  oidy  course  is  to  adhere  to  the  law,  and  to 
rule  on  i»rinciple.  It  may  sometimes  work  seeming  injustice; 
a  departure  from  it  would  open  tlie  llood-gates  uf  speculation, 
and  unsettle  the  entire  jtracticc  of  tlie  court.  In  this  case  any 
wrong  done  can  be  but  tem])orary;  the  party  can  be  tried  again, 
and  if  found  guilty  on  the  second  count  i)roperly  framed,  he  can 
be  punished  according  to  law. 

Let  the  judgment  be  reversed,  and  a  new  trial  granted. 


EX  PARTE  JOHN  WHITE. 


169 


I 


Ex  Pakte  John  White. 

(49  Cal.,  4:33.) 

EXTHAUITION. 

I- „,litia's  from  justice. 
Tlio  jfovonior  of  this  state  has  no  authority  to  suiTCiuler  a  fugitive  who  has  coin- 
iiiittod  a  Clinic  in  iiuotlin*  state,  unless  jiuheial  proceedings  have  been  coiu- 
ineiuv.l  11);.   ■■        111  for  the  crime  in  the  state  iii  wliicli  it  was  committed. 
jhrci't  of  J  injitiifx  from  justice. 
A  person  cannot  be  anvsted  here  for  a  crime  comrnitved  in  another  state,  unless 
a  proseciuion  has  been  rommenci'd,  ami  is  pending  against  him  for  the 
alji'uvd  crime  in  the  state  having  jurisdiction  of  tlie  otl'ense. 
Onintiliili  uial',!;/  oj  law  concvrniwjfui/itires  from  justice. 
The  comi  sav.  -.vithont  passing  authoritatively  on  (he  point,  that  '■  j  reason  is 
perceived  why  a  law  allowing  fugitives  from  justice  fleeing  i  om  another 
state  to  be  an-ested  hero  and  delivered  up  to  ti\c  authorities  of  the  state 
having  jurisdiction  of  the  offense,  is  not  constitutional. 

On  the  18th  chiy  of  Jtimiaiy,  1875,  a  warrant  was  issued  by 
tlie  chief  justice  of  the  8iii)reine  court,  for  the  arrest  of  the  peti- 
tioner "White.  The  warrant  was  issued  on  an  alfidavit  of  Daniel 
Cuftby,  wliit'Ii  alleged  tliat,  on  or  ahout  the  1st  day  of  December, 
1ST4:,  at  the  city  of  Jjoston,  state  of  Massacliusetts,  White  stole 
three  gold  watches,  of  the  value  of  8300,  and  that,  to  escape  pun- 
ishment, he  lied  from  the  state  of  Massachusetts,  and  had  taken 
refuge  in  the  state  of  California. 

The  other  facts  are  stated  in  the  opinion. 

CiciM'KETT,  J.  The  j)ctitioncr  lias  been  brought  before  us  on 
a  writ  of  hahuns  ('orj)ifts',  and  it  a])pears  from  the  return  of  the 
chief  of  ])olicc,  that  he  is  hold  under  a.  warrant  of  arrest  issued 
liya  magistrate  having  authority  to  issue  such  writs.  It  further 
iijipears  that  there  was  ])resented  to  the  magistrate,  before  and 
at  the  time  of  issuing  the  warrant,  an  atllthivit  made  in  this  state, 
to  the  eilect  that  the  petitioner  had  committed  the  crime  of  grand 
larceny  in  the  commonwealth  of  ]\[ass'.;chusetts,  and  is  a  fugitive 
from  justice  from  that  state.  I'l.t  it  was  uot  shown,  by  the  alH- 
(lavit  or  otherwise,  that  a  prosecution  is  pending  or  has  ever  been 
instituted  in  Massachusetts  againsl  the  petitioner  for  the  alleged 

Oil't'IlSC!. 

Section  1548  of  the  Penal  Code  provi'les  that "  a  person  charged 
in  any  state  of  the  United  States,  with  treason,  felony,  or  other 


iro 


AMERICAN  CRIMINAL  REPORTS. 


crime,  who  flees  from  justice,  and  is  found  in  this  state,  must, 
on  demand  of  the  executive  authority  of  the  state  from  ^vliicli 
he  fled,  "  be  delivered  up  hy  the  governor  of  this  state."  Under 
this  section,  it  is  evident  the  governor  lias  no  autliority  to  sur- 
render a  fugitive,  unless  he  has  been  '"charged"  with  crime  in 
the  stat(!  from  which  he  fled.  A  ])rosecution  must  have  been  in- 
stituted there,  before  the  governor  can  act.  Section  1549  pro- 
vi<les  that  "  a  magistrate  may  issue  a  warrant  for  the  apprehension 
of  a  i)erson  so  charged,  who  flees  from  justice,  and  is  found  in 
this  state,"  and  the  seven  )iext  i>receding  sections  provide  what 
steps  shall  be  taken  for  the  detention  of  the  fugitive  until  a 
requisition  shall  be  made  for  his  surrender  by  the  proper  author- 
ities of  the  state  from  which  he  fled. 

The  first  point  for  consideration  is,  whether  this  case  comes 
within  the  provisions  of  the  statute,  and  we  are  convinced  iL  dues 
not.     It  was  not  intended  that  a  person  might  be  arrested  here 
upon  an  aflidavit  or  information  charging  him  with  the  coniniis- 
sion  of  a  crime  in  another  state,  when  no  prosecution  has  been 
commenced  there,  and  may  never  be.     lie  is  not  a  fugitive  from 
Justice  in  the  sense  of  the  statute,  unless,  at  the  time  of  his  ar- 
rest, there  bo  a  pending  j)rosecution  against  him  for  the  alleged 
crime,  in  the  state  having  jurisdiction  of  the  oll'ense.     Section 
1550  tends  strongly  to  supi)ort  this  view  when  it  ])rovides  tliat 
at  the  examinati(jn  before  the  committing  magistrate, '' an  e.\- 
emi>lified  copy  of  an  indictment  found,  or  other  judicial  ])roceed- 
iiiirs  had  a<xainbt  him  in  the  state  in  which  he  is  char<;cd  tu  have 
committed  the  oHcnse,  may  be  received  as  evidence  bef<jre  the 
magistrate."     The  statute  contem])lates  a  case  in  which  a  ]»ruse- 
cution  is  pending  in  another  state  and  the  fugitive  is  found  in 
this  state,  and  may  escape  pum'shment  uidess  he  shall  be  detained 
until  suilicieut  time  shall  have  elapsed  to  procure  and  forward  a 
re(piisition  for  his  surrender.     JJut,  as  already  stated,  it  is  not  aji- 
plicable  t(t  a  case  in  which  no  ])rosecution  is  pending  in  the  htato 
having  jurisdiction  of  the  ollense.     This  view  of  tlie  law  renders 
it  uimecessary  for  us  to  decide  whether  these  j)rovisi(Uis  (d'  tlie 
l»enal  code  are  unconstitutional;  but  without  ])ronouncing  an 
authoritative  opinion  on  the  j)oint,  it  may  not  be  impro))er  fur 
us  to  say  that  no  reason  occurs  to  us,  and  none  lias  been  suggest- 
ed at  the  argument,  why  it  is  not  comi)etent  for  the  legislature 
to  provide  for  the  arrest  and  detention  of  a  fugitive  from  justice 


■11 


EARP  V.  STATE. 


171 


until  his  surrender  shall  be  demanded  in  accordance  with  the 
constitution  and  laws  of  the  United  States. 
Ordered  that  the  jirisoner  be  discharged  from  custody. 

Wallace,  C.  J.,  and  MoKinsley,  J.,  concurred  specially  in  the 
judgment. 


Eakp  vs.  State. 
(.55  Ga.,  13C.) 
Evidence:    Confessions. 


Where  an  officer  promised  rcspomlont,  a  girl  of  fourteen,  that  if  she  would  tell, 
she  should  not  be  hurt,  and  she  thenupon  confessed  her  guilt,  it  was  held 
tliat  tiio  confession  was  inadniissibie,  as  not  iiaving  been  made  voluntarily. 

Where  a  confession  which  is  inadmissible  because  not  voluntarily  made  is  ad- 
mitted without  objection,  it  is  nevertheless  the  duty  of  tiie  court  to  exclude 
the  confession  fi'om  the  consideration  of  the  jury  by  his  charge,  if  so  re- 
quested. 

Jackson,  J.  Cass  Earp,  the  defendant,  is  a  negro  girl,  some 
fonrtoen  years  old.  She  was  charged  and  convicted  of  murder,  in 
tlirowiiig  a  little  colored  child,  two  years  old,  into  the  river.  The 
child  was  found  dead  some  week  or  so  afterwards,  lower  down  the 
river,  in  a  tish  trap.  The  evidence  was  purely  circumstantial,  and 
hardly  sufficient  to  authorize  a  conviction  without  the  aid  of  de- 
fendant's confessions  of  guilt.  Those  confessions  were,  that  she 
threw  the  child  into  the  river,  but  they  were  reluctantly  made 
hy  her,  atid  before  she  made  them  she  said:  "  If  I  tell  you,  won't 
you  hurt  nie?"  to  which  the  reply  of  the  constable  was,  "  No, 
you  shan't  be  hurt;  I  came  here  to  arrest  you,  and  you  shan't  be 
hurt.''  This  promise  wa>  repeated  to  her  upon  her  hesitating 
and  asking  the  rpicstio/i  again,  and  then  and  only  then,  did  she 
make  the  confession.  The  confession  went  to  the  jury  without 
objeetiun,  and  her  counsel  requested  the  court  to  charge,  "  that 
in  order  to  make  her  confessions  evidence  against  her,  it  must 
appear  to  the  satisfaction  of  the  jury  that  such  confessions  were 
nnule  voluntarily,  without  being  induced  by  another,  by  the 
plii,'htest  hope  of  beneiit,  or  the  remotest  fear  of  injury."  The 
court  refused  so  to  charge,  and  this  was  the  main  ground  of  the 
motion  for  new  trial,  which  was  refused,  and  error  is  assigned 


Uv 


':*]' 


172 


AMERICAN  CRIMINAL  REPORTS. 


thereon.  The  Code  declares,  "to  mixlx  a  confession  .adniigsible, 
it  iruist  liavc  been  lUiule  voluntarily,  without  bcini^  induced  by 
another,  by  the  sliglitest  hope  of  benefit,  or  reniote.st  fear  of  in- 
jury." The  rerjuerit  is,  theref(jre,  in  the  very  langnai^e  of  the 
Code,  and  sliould  have  been  (^iven  to  the  jury,  unless  the  defend- 
ant forfeitf'd  lier  ri<;lit  to  the  charge  by  the  failure  of  the  counsel 
to  ol)iect  to  the  co.ifession, or  to  move  to  rule  it  out,  The('.(»urt 
below  put:  bis  refusal  uj)on  this  ground,  and  the  naked  fjucstiou 
is,  Sliould  a  conviction  for  murder  stand  upon  illegal  evidciieo 
because  it  went  to  the  jury  without  objection,  when  the  court'^i 
attention  was  culled  to  it,  and  he  was  ri!(j nested  to  charge  tlu;  law 
thereon,  and  wholly  failed  to  do  so?  We  thiidc  that  it  should  nut 
stand,  but  that  tbu  utdiappy  and  doubtless  guilty  girl,  sliould 
have  another  chance  for  her  life,  and  if  convicted,  should  be  coii- 
vi(!ted  ae('(»rding  to  law. 

A  motion  to  nib;  out  the  evidence  would  have  be('n  the  safer 
and  better  practice;  but  if  admitted,  we  think  the  law  should  go 
to  the  jury  with  it,  that  it  might  have  only  the  weight  to  which 
it  i-:  eiititk'd.  The  girl  here  evidentl}'  hoped  that  she  would 
make  sonicthing  by  her  confession,  for  the  great  man  of  the, 
ccmpany,  in  her  eyes,  the  constable,  assured  her  that  she  should 
not  li(^  hurt,  aft(;r  she  had  expressed  her  ajtpreluMisioiis  that  they 
would  hurt  her.  J»esi<lcs,  some  of  the  witiuisses  heard  the  prom- 
ise of  the  constable  that  she  shouM  not  be  hurt,  and  others  did 
not,  and  the  testimony  of  the  latter  was  in  l)efi>re  't  was  certain 
that  such  ]ioj)es  were  held  out  to  induce  the  confession,  and  in 
such  case  the  counsel  might  well  prefer  not  to  rub;  out  the  evi- 
dence, as  it  was  already  in,  but  to  ask  the  instructions  of  the 
court  thereon.  At  all  events,  the  circumstantial  e\  Idence,  with- 
out the  confessions,  would  scarcely  justify  the  hanging  of  this 
defendant;  aii<l  if  her  confessions  were  illegally  e.\torti'(]  iVoiii 
her,  she  ought  not  to  suffer  the  death  ])enalty.  I'esides,  M-e  think 
this  court  has  substantially  I'uled  the  jtoint  in  issue.  See  /fol- 
ifcuhrd'c,  V.  TJie  Stiif,.^  45  (ia.,47;  StuU'dHj)^  >\  Tin-  Sfiifi',  47  id., 
572;  and  Nathoih  Frmih  v.  77i<i  Stafe,  51-  i<l.,  :5!».  These  eases 
leave  this  no  longer  an  o])en  (piestion  in  this  court.  Let  the 
be  reversed  on  the  ground  that  the  court  erred  in  not 
ho  new  trial  on  the  ''round  nredicated  imou 


j'»^ 


granting  1 

to  cliarge  as  re(|uested. 


ret 


Judgment  reversed. 


I 


NEWMAN  V.  STATE.  173 

Newman  vs.  State. 
(49  Ala.,  9.) 
EviDEN'CK :    Confessions  —  Disqualijimtion  of  jitth/c  hj  rchitionnh ip. 

The  porson  witli  whom  a  i)riHOii('r  liiul  boon  livinj,'  for  two  years  saiil  to  him, 
"  Tom,  this  is  iiiij,'hty  hard;  tlioy  havo  got  tlio  dead  wood  011  you  and  you 
will  lio  convicti'd,' and  at  tiie  wanio  tiuio  said  sonuitiiinjj  ahuut  "  owning 
up."  Till'  [irosccntor  said  to  tlio  prisoner,  "  Yon  are  very  ymniy  to  bo  in 
siuii  a  diflioiilty  as  tliis;  tiiorc  nnist  liavo  boon  sonio  ono  with  yo\i  who  is 
older,  and  I,  if  in  your  place,  would  tell  wlio  it  is;  it  is  not  rif,dit  for  you  to 
snti'or  tiio  wliolo  penalty  and  lot  some  ono  wiio  is  {,'niltier  p)  froo;  it  may  go 
liffliter  with  you."  lIiUI,  that  eonlcssions  made  under  tlio  influence  exerted 
l)y  tliis  language  could  not  bo  regarded  as  voluntiirj',  and  are  inadmissible. 

A  judge  wlio  is  related  to  the  prnseciitor  by  marriage  is  not  incomiwtent  to  sit 
in  the  trial  of  a  criminal  case.     Ho  is  not  rehited  to  a  party. 

From  the  Circuit  Court  of  Henr)/.  Tried  before  the  Hon.  J. 
McCai-kb  Wim;v. 

Tlie  indictment  in  this  case  ch!ir<jfed  that  the  prisoner,  "Thom- 
as, alios  Tom  Kewnian,  l>rolve  into  ujid  entered  the  store  of  J. 
1).  Freeman  ^  Co.,  wliicli  said  iirm  Wiis  composed  of  J.  D.  Fi'ee- 
niaii  and  Fpliraim  Oates,  and  in  whicli  said  store  merchandise  of 
value  WHS  and  is  kept  for  use,  sale  or  deposit,  with  intent  to 
steal."  "On  the  trial,"  as  the  1)111  of  exceptions  states,  "  the 
state  introduced  .f.  \).  F'reeman  as  a  witness,  who  testified  in 
substance  as  f(»llows:  The  iirm  of  J.  D.  Freeman  *fe;  Co.  is  com- 
posed of  Kphraiui  Oates  and  myself.  We  curry  on  a  family 
grocery  and  confectionery  in  the  town  of  Ahbeville,  in  said 
county,  and  keej)  ^oo<ls  of  value  for  sale  in  said  store.  On  the 
uiornini;  of  the  2d  day  of  A[ay,  1ST2,  I  opeiu'd  and  went  into 
til!  store  at  the  usual  time,  and  on  enterinir.  found  that  the  hack 
(l(jorliail  been  forcetl  open  <lurin^  the  ni^ht.  1  then  proceeded 
to  examine  the  j^oods,  and  f«»wnd  tlutt  a  (quantity  of  ci;;ars,  tobac- 
co, collee,  Hour,  money  jukI  other  thinj»*>^  liu«l  Ikxu  taken  there- 
ironi.  1  estimated  that  the  money,  with  the  vuhie  of  the  o;oodti 
lost,  anion  11  tetl  to  alM>ut  i^W^t.  A  few  days  afterwanls,  I  sued  t»ut 
a  warrant  aijaiiist  the  di'fendant,  and,  in  company  Aith  the  sher- 
illaiid  one  A.  W.  Stokes,  went  to  the  house  oocujued  by  the  de- 
fendant, who  was  then  in  tlic  employment  «»f  said  SIvkos,  and 
was  li\  \\\<r  ill  ii  small  house  on  his  place.  The  sherifl'  and  I  en- 
tered the  defendant's  house,  and  seiil  s;iid  Sti»kes  to  the  field 


where  !ie  was  at  work,  to  brim;  bim  to  the  hou 


j<\ 


1 


a  a  s 


liort 


17i 


AMERICAN  CRIMINAL  REPORTS. 


time  tlicy  came  into  the  lionse  together,  and  I  toltl  the  (lofoiid- 
ant  that  I  wanted  to  examine  his  hux,  or  cliCBt;  tliat  I  tlioiight 
}\e  had  some  of  my  goods  in  it.  He  denied  having  tlie  goods, 
and  gave  us  tlie  key  to  liis  hox  or  elicst.  "We  opened  and  exam- 
ined  said  hox,  and  found  it  to  contain  ahout  luilf  a  box  of  cigars 
and  some  tobacco,  wliich  I  at  once  recognized  as  a  jjortion  nf 
my  stock.  The  sheriff  tlien  arrested  the  defendant  under  tlic 
warrant  whicli  lie  liad  against  him.  I  tlien  asked  the  dcfetid. 
ant  where  lie  got  the  tobacco  and  cigars,  and  lie  replied  tlmt 
he  got  the  cigars  from  ]\[r.  Asher  and  the  tobacco  from  Mv.  J. 
M.  Calloway,  lie  was  then  informed  that  Mr.  Aslier  had  no 
such  cigars  and  Mr.  Calloway  no  such  tobacco,  and  tliat  lie 
would  have  to  prove  that  he  got  the  cigars  and  tobacco  from 
them.  I  then  said  to  the  defendant,  '  These  cigars  and  this  to- 
hacco  are  mine;  I  will  identify  them,  atul  you  had  as  well  owa 
it.'  The  witness  then  proceede<l  to  state  the  confession  of  de- 
fendant, made  at  the  time,  and  under  the  above  circumstaiicos; 
to  which  (dtjection  was  made  by  defendant,  wliicl'  (d)jt'otiou 
was  overruled,  and  the  defendant  exce])ted.  The  witness  tlien 
proceeded  to  state  the  following:  'After  the  above  conveivsa- 
tion  hetween  the  defendant  and  myself,  he  stated  to  me  that  he 
had  got  the  goods  out  of  my  house;  that  he  and  his  brother, 
while  standing  at  Kimbrough's  well,  heard  a  noise  over  at  the 
store;  that  they  went  over  there  to  see  about  it,  and  found 
the  back  door  of  the  store  open,  and  he  went  in  and  took  the 
cigars  and  tobacco.'  After  the  above,  I  told  defeiKJant,  '  Vou 
are  very  young  to  be  in  such  a  difficulty  as  this;  there  must  liav'e 
been  someone  with  you  who  is  older  than  you,  and  I,  if  in  your 
place,  would  tell  who  it  is;  it  is  not  right  for  you  to  suH'cr  the 
whole  penalty,  and  let  some  one  who  is  guiltier  go  free;  that  it 
might  go  lighter  with  him.''  The  witness  then  ])roceeded  to 
state  other  confessions  made  by  defendant  to  him  at  this  time, 
but  the  court,  ex  went  motu,  refused  to  allow  the  witness  to  state 
such  confessions,  to  which  the  defendant  excepted.  The  wit- 
ness then  testified,  '  I  think  this  conversation  took  jdace  after 
the  confession  hereinbefore  set  out.'  " 

The  State  then  introduced  said  J.  W.  >Stokes  as  witness,  who 
testified  as  foHows,  in  substance:  "On  seeing  the  defendant  in 
possession  of  cigars  and  tobacco,  my  suspicions  were  aroused 
against  him,  and  I  thought  that  he  had  something  to  do  with,  or 


knew  of  the 
defendant  ^ 
sniall  house 
iiiiUi  certain 
giiw  in  the  ( 
after  he  hai 
to  the  defei 
to  liis  lious( 
from  the  fi» 
liousc,  and 
any  of  his  ] 

jroods.       !)*■ 

Freeman,  a 

arriving  at 

we  found, ( 

(Tiirs  and  t« 

remarked  t 

(rot  the  de.'i 

hiiu  where 

that  he  g(»t 

Calloway 

he  got  thei 

paid  some 

stated  that 

well,  heart 

open,  wen 

tobacco,  ai 

Freeman 

about  halt 

and  starti 

were  at  tli 

me  nearly 

stolen  the 

bacco,  thi 

to  do  witl 

thing  to  s 

Defciidan 

hole,  ai.i( 

this  was  1 


cigars  aui 


NEWMAN  r.  STATE. 


175 


knew  of  the  burglary  whicli  had  l)ccn  recently  committed.  Tho 
(lefeiidtuit  was  in  my  emph^y  at  the  time,  and  was  living  in  a 
gniall  liousc  on  my  promises.  I  communicated  to  J.  1).  Free- 
luaii  certain  facts  relative  to  some  cigars  and  tobacco  which  I 
giiw  in  the  <lefendant's  box,  and  he  and  the  sheritl'  and  myself, 
after  he  had  procured  a  warrant  for  the  defendant's  arrest,  went 
to  the  defendant's  house.  The  sherilf  and  said  Freeman  went  in- 
to ills  house,  while  I  went  to  the  liehl  after  him.  While  coming 
from  the  Held  with  him,  I  told  him  that  Mr,  Freeman  was  at  his 
lioiise,  and  wanted  to  examine  his  box,  iind  see  whether  he  had 
any  of  his  proi)erty ;  that  he  suspected  him  of  having  some  of  tho 
(roods.  Defendant  rejdied  that  he  had  nothing  belonging  to  j\Ir. 
Freeiiiiin,  and  that  he  was  willing  for  him  to  look  an«l  see.  Oii 
arriving  at  the  house,  defendant  gave  up  the  key  to  his  box;  and 
we  found,  on  examination,  that  said  box  contained  a  lot  of  ci- 
(jiU's  and  tobacco,  which  said  Freeman  identified  as  his.  I  then 
rL'niurkod  to  the  defendant,  "Tom,  this  is  mighty  bad;  they  havo 
cot  the  dead  wood  on  you,  and  you  will  bo  convicted;"  and  asked 
liini  where  he  got  the  cigars  and  tobacco;  to  which  ho  replied, 
that  he  got  the  cigars  from  ^tr.  Asher,  and  the  tobacco  from  Mr. 
Calloway.  I  then  told  him  that  he  would  have  to  prove  where 
he  got  thein,  and  that  said  Calloway  liad  no  such  tobacco;  and 
said  boniething  to  him  about  owning  up.  The  defendant  then 
stated  that  he  and  his  brother,  while  standing  at  Kind)rough'8 
well,  heard  a  noise,  looked  over  the  fence,  saw  the  store  door 
open,  went  over  there,  and  went  in;  that  he  took  the  cigars  and 
tohaeeo,  and  his  brother  took  tho  money.  AV^e  then  sent  said 
Freeman  to  obtain  a  warrant  against  defendant's  brother;  and 
abont  half  an  hour  after  lu;  had  left,  the  sherifF  took  defendant, 
and  started  with  him  to  jail.  After  wo  had  left  the  house,  and 
were  at  the  gate,  I  told  defendant  that  ho  had  been  living  with 
me  nearly  two  years;  that  there  was  noneeessity  for  him  to  have 
stolen  the  cigars  and  tobacco,  as  I  had  always  furnished  his  to- 
bacco, that  wo  would  then  separate;  that  I  could  havo  nothing 
to  du  with  any  one  who  had  acted  so  badly,  and,  if  he  had  any- 
thing to  say  as  to  my  assisting  him  in  the  difliculty,  to  do  so. 
Defendant  then  ]>ruceeded  to  confess,  that  his  brother  bored  tho 
hole,  and  fcn-ced  open  tho  door,  and  he  watched  for  him  while 
this  was  being  done,  that  they  entered  tho  store,  and  ho  took  the 
cigars  and  tobacco,  and  his  brother   took  the  money.     The  de- 


u,. 


u« 


m 


17fl 


AMKinCAN  CIUMINAIi  UKrwiri'S. 


fcndiitit  movcfl  tlio  court  to  excliido  tliis  confivsion;  tlio  court 
overruled  IIk;  motion,  iukI  tlio  (lofiiiultuit  (!.\('(!i)t(Ml. 

Oil  (•rohs-cNMmiiiiitioiijSaitl  witiKis.s  tcstilicd  uh  followH:  "Tim 
(Icrciidiitit  is  ii  iKi^To  hoy  ubout  ci^litct;!!  y«;!irH  of  ii^^c,  and  of 
only  ordlnury  iiitclli^fitiit'o.  I  w.'is  pnisciit,  iiiid  liciird  tlKscoii. 
vorKtitioti  wliicli  t(H»lv  jdiici)  hotwiitiii  Hiiid  Frut'inaii  mid  tlio  de- 
feiidaiit.  I  tliink  tlic;  laii;fiia<^(i  addressed  by  said  Kreeiiiaii  to 
defciiduiit,  to  wit:  "  Vctii  an;  very  yoim;;  t<»  lii;  in  siicli  a  diili. 
ciilty  as  tins;  tli(!r(!  iimst  have,  heeii  soiiio  one  with  you  who  U 
older,  and  I,  if  in  your  ])laee,  would  tell  who  it  was;  that  it  was 
not  ri^dit  for  him  to  sulVer  tlic!  wlioh;  lUMialty,  and  let  some  one 
who  is  <;uiltier  i;o  free;  that  it  nii^dit  <;o  lighter  with  liim,"  wiw 
iis(;d  1»efore  defendant  had  mad(!  any  ('niifdssiou  at  all,  and  hefoic 
lie  liad  aeluiowliMli^ed  anythiii<,'.  'l'hed(!feiidaiit  then  moved  Ihu 
coiirl  t<»  e.\elu«l(!  such  and  (jvi-ry  (ioiifessioii  whi(di  had  heeii  ad. 
inittcd  ai^'ainst  him;  the  moticiii  was  ovurruU'd,  and  the  defend- 
ant ex(^e|)ted. 

I'lio  witness  rreeinan  stated,  on  cross-(!.\aiiiinatioM  "  that  lie 
liad  married  tin;  niece  and  ^raiid  dau;;hter  of  tin;  j»residin<^  jiidi,'(!,'' 
and  tli(!  (htfeiidaiit  tli(!reii|ion,  "  l»y  his  counsel  sui^i^estxid  the  iii- 
coiii|)('teiicy  of  tlu'  judi^e  to  try  tlu;  (rase,  on  acxrount  cd'  his  ri'la- 
tionshi|>  to  one  of  the  ])arties,  and  nioviid  to  discontiniu!  the  trial." 
The  court  <»v(!rriiled  the  motion,  and  the  defendant  excepted. 
After  eoiiviction,  the  def(!iidant  renewt-d  his  (d)jection  to  tlio 
eoin|)(!teiicy  of  the  presidiiii^  jinl.i^(%  and  excepted  on  that  ground 
to  the  sentence  and  iiidii;ni(!iit  of  the  court. 
ir.  (\  (fdtiK,  for  tilt!  prisoner. 

Jh'ii,.  (/(tn/iicr,  AttoriKsy  (Jeneral,  cDiitrd. 

J'kok,  (/.  .1.  I'lifore  any  confession  can  he  received  in  evidcnco 
ill  a  criminal  case,  it  must  ho  sh(»wn  that  it  was  viduntary. 
1  (Jreeiil.  Kv.,  ^  'Ji!>.  A  cnnfessi(»n  (d)taiiied  from  an  accused 
jiersoii,  in  the  custody  (d'  his  ac(!users  "  hy  tlu;  ilattery  (d'  liojie, 
or  the  torture  of  fear,  is  not,  in  C(Mitem])lation  of  law,  V(duntary, 
and  should  not  her;-  eived  asevideiiceof  <^uilt,  and  no  credit  oiij^lit 
to  he  f^iveii  to  it.  The  hooks  are  full  (d"  examples  and  instances, 
showiiii^  us  in  what  cases  confessions  have  heen  lield  to  he  iiiad- 
missihle,  as  not  voluntarily  made.  Thus,  where  the  coiistaldo 
■who  arrested  the  prisoner  said  to  him,  "  it  is  no  use  f(M'  you  to 
deny  it,  fur  there  are  the  man  and  hoy  who  will  swear  they  saw, 


m^  :  \T 


NKWMAN  I'.  STATK. 


177 


irt 


'ho 


von  <lo  it."  So,  wliero  tho  proseciitoi"  said  to  the  jirlsonc, 
"  L'lilt'rts  }'oii  <f\vii  inoii  iiioro  8iiti8fiU',tt»ry  iU!coiiiit,  I  will  tukuyou 
l)(ifi)i'c  !i  iiiii;^istnitc'."  So,  iilso,  wlioru  a  i^irl,  tliirtoun  yours  old, 
wuH  cli!ir^<;<l  with  udinlnistoriii;^  j>ois(»n  to  hor  mistress,  with  In- 
toiit  to  iiiiinler,  iitid  the  surgeon  in  iitteudiiiieu  had  told  lior,  "It 
would  lie  lji;tt(!r  for  her  to  Hj)eak  the  truth,"  it  was  held  that  her 
confession,  thereupon  made,  was  inadmissihle.  So,  a^^ain,  where 
the  i)ris(jii(;r'ri  superior  in  the  post  olliee  said  to  the  prisoner'^ 
wife,  while  hcsr  husband  was  in  custody  for  oi)enini;  and  detaiii- 
iii<r  ii  letter,  "  Do  not  he  frightened;  I  hope  nothin;^  will  liaj)- 
Tieii  to  your  husband  beyond  the  loss  of  his  situation;"  the  pris- 
oiicfr'rt  Kubs(;(juent  confession  was  rejected,  it  ap[)earin^'  that  tho 
wife  niii,dit  have  communicated  this  to  the  prisoner.  These  are 
soine  of  tli(!  cases  ;^i veil,  in  which  ('(tiifefsions  were  rejected  on 
fli(!  ;,'round  that  tlnsy  were  not  voluntarily  ma<le.  1  (rreenl.  Ev., 
^  22(1,  and  notes. 

Xow,  comparing  tlie  circumstances  under  which  the  prison- 
er's confessions  were  made  with  the  cases  cited,  it  seems  to  mo 
liis  cotdVssion  must  be  rejected  as  involuntary.  Jle  must  bo 
supposed  to  have  been  alarmed  by  what  was  said  to  him,  and 
thereby  induced  to  believe  the  ])arties  into  whose  hands  he  had 
fallen  could  and  would,  by  some  means,  eil'ect  liis  conviction, 
uiid  that  the  best  thing  lie  could  do  was  to  make  a  confession. 
This,  [  think,  is  clearly  to  be  inferred  from  what  was  said  to  him 
hy  the  prosecutor  and  the  witness  Stokes.  After  the  prisoner's 
liox  had  been  examined,  an<l  cigars  and  tobacco  found,  which  tho 
]»rosecutor  identilied,  and  claimed  as  belonging  t(j  him,  the  wit- 
ness Stokes  said  to  the  ])risoner:  "Tom,  this  is  mighty  bad; 
tlioy  have  got  the  'dead  wood'  on  you,  and  you  will  be  convict- 
ed," and,  at  the  same  time,  said  something  to  him  about  "own- 
in;;  n]i."  This  witness,  with  whom  the  prisoner  had  been  living 
for  about  two  years,  also  said  to  ]»risoner  he  could  have  notliing 
to  do  with  one  who  had  acted  so  badly,  and  if  he,  ]>risoner,  had 
iinythiiig  to  say  as  to  his  assisting  him  in  the  diiliculty,  to  do  so. 
The  prosecutor,  who  claimed  the  articles  —  the  cigars  and  tobac- 
co found  in  the  jirisoner's  box  —  said  to  him  at  the  same  time: 
"You  ai-e  very  young  to  be  in  such  a  dilHculty  as  this;  thero 
nnist  have  been  some  one  with  you  who  was  older,  and  1,  if  iu 
yoiu-  i)lace,  would  tell  who  it  was;  it  is  not  right  for  you  to  suf- 
fer the  whole  j)enalty,  and  let  some  one  who  is  guiltier  go  free, 
Vol,.  I.  — 12 


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23  WIST  MAIN  STRin 

WIBSTIR,N.Y.  14910 

(716)  •73-4903 


1 


ITS 


AMERICAN  CRIMINAL  REPORTS. 


that  it  might  go  lighter  with  him."  I  have  no  hesitation  in 
saying  that  confessions  obtained  under  such  influences  ought  not 
to  be  regarded  as  vohmtary,  and  shouhl  be  rejected.  AVhen  it  is 
considered  that  the  prisoner  is  a  negro  boy,  about  eighteen  years 
old,  of  ordinary  intelligence,  and  necessarily  ignorant,  suddenly 
arrested  and  in  custody,  charged  with  a  grave  offense  and  sur- 
rounded by  the  prosecutor  and  others,  who  h<id  been  active  in 
procuring  liis  apprehension,  no  one  can  understand  tlie  extent  of 
the  influence  that  may  have  been  produced  on  his  ignorant  mind 
by  what  was  said  to  him.  Most  probably  he  was  induced  to  be- 
lieve  that,  by  making  a  confession,  in  the  language  of  the  pros- 
ecutor, "  it  would  go  lighter  with  him."  The  objection  to  the 
admissibility  of  the  prisoner's  confessions,  obtained  under  the 
circumstances  disclosed  in  the  bill  of  exceptions,  shoukl  have 
been  sustained. 

The  objection  made  to  the  competency  of  the  presiding  judge 
Was  properly  overruled.  He  was  not  interested  in  the  cause, 
nor  related  to  either  of  the  parties.  Eevised  Code,  §  G35.  His 
relationship  to  the  prosecutor  did  not  aflfect  liis  competency. 

Jndfjment  reversed  and  remanded. 


1 


Peoi'lk  vs.  Bakric. 

(49  Cal.,  342.) 

Evidence  op  Iscorpouatiox  :    Confessions  —  Accomplice. 

On  tlie  trial  of  an  indictment  for  stealing  from  a  corporation,  evidence  that  a 
comiiany  known  by  tlie  name  yiven  in  the  indictment  is  a  corporation  de 
facto  doing  business  is  sufficient  evidence  of  incorporation. 

Wliere  a  prosecuting  witness,  wlio  testifies  to  confessions  made  in  the  presence 
of  himself  and  the  sherill',  testifies  in  a  preliminary  rross-examinatinn  that 
it  is  possible  that  something  was  stiid  about  its  being  better  for  the  pris- 
oner to  make  a  full  disclosure,  it  was  held,  that  the  confession  was  inadmis- 
sible. 

Before  confessions  made  to  one  in  autlfority  can  1)0  received  in  evidence,  it  must 
appear  aftinnatively  that  they  were  made  voluntarily. 

One  who  purchases  stolen  goods  from  a  thief,  with  money  furnished  by  an  offi- 
cer, with  a  view  of  bringing  the  tliief  to  justice,  is  not  an  iiccomi)lice. 

Tlie  fact  that  a  defendant  did  not  move  for  a  new  trial  in  the  court  below  will 
not  bar  a  new  trial,  on  the  reversal  of  an  en-oneous  conviction  by  the  su- 
preme court. 

AiTKAL  from  the  County  Court  of  Santa  Claiu  County. 
The  case  was  this:     In  the  county  of  Santa  Clara  are  exten- 


PEOPLE  I'.  BARRIC. 


179 


sive  mines  of  quicksilver,  which  have  been  worked  for  many 
vears  by  tlio  *'  Quicksilver  Mining  Company  of  New  York." 
Tiie  defendant  was  charged  in  the  indictment  with  liaving,  on 
the  3d  day  of  February,  1874,  stolen  ten  flasks  and  three  soda 
bottles  containing  quicksilver,  the  jiroperty  of  said  corporation. 
The   prosecution,  on  the  trial,  called  as  a  witness  Charles  W. 
Hinman,  who  testified  that  he  had  lived  in  Santa  Clara  county 
a  number  of  years,  and  that,  while  in  Mazatlan,  Mexico,  some 
two  years  before  the  trial,  he  saw  soda  bottles,  which  were  man- 
ufactured for  a  man  in  Santa  Clara  county,  for  sale,  containing 
qnicksilver,  and  that  he  knew  the  quicksilver  must  have  been 
stolen.    That,  on  the  5th  day  of  February,  1874,  defendant  came 
to  him  and  inquired  if  .;e  did  not  want  to  make  a  speculation, 
and  informed  him  that  he  could  sell  him  quicksilver,  and  said 
further:    "you  are  engaged  in  silver  mining  in  Nevada,  and 
need  quicksilver."      That   the  witness   encouraged  him   with 
hopes  that  he  might  buy,  but  told  him  he  had  not  got  the 
money  to  pay  for  it.     That  the  witness  immediately  went  to 
the  sheriff's  office,  and  informed  the  sheriff  of  what  had  taken 
place,  and  it  was  arranged   that  the  witness  should  buy  the 
quicksilver,  and  the  sheriff  should  furnish  the  money.     That 
the  witness  had   several   interviews  witli   the  defendant,  and 
agreed  to  buy  the  quicki*ilver  at  fifty  cents  per  pound.     That 
tlie  defendant  delivered   it  at  the  witness'  place  of  residence 
in  San  Joso,  soon  after  the  first  conversation,  and  told  witness 
that  it  was  stolen,  and  witness  paid  him  for  it  with  money  fur- 
nished by  the  sheriff.    It  a})peared  by  the  testimony  of  two  other 
men  that  Barric  had  hired  the  guard  at  the  mine  to  steal  the 
quicksilver  for  him  in  the  night.     It  did   not  appear  from  the 
record  but  what  the  theft  had  been  committed  before  Ilinman 
had  his  first  conversation  with  the  defendant.    A  flask  of  qui  A- 
silver  contained  70^  pouiuls,  and  it  was  worth  $1.20  per  pound. 
The  flasks  wore  made  of  iron.     The  only  other  testimony  was 
that  of  Ilondel,  the  superintendent  of  the  mine,  who  testified 
that  the  defendant  confessed  that  he  was  guilty,  in  the  sherift"s 
office,  to  him  and  tiie  shcrilf  and  his  deputy.     When  Rondel 
was  asked  by  the  prosecution  to  relate  the  confession,  the  attor- 
ney for  the  defendant  obtained  leave  of  the  court  to  ask  him 
Borne  preliminary  questions,  as  to  whether  the  confession  was 
voluntary.     These  questions,  and  the  reply  of  the  witness,  are 


ill  I 

.1' 


180 


AMERICAN  CRIMINAL  REPORTS. 


stated  in  the  opinion.  The  counsel  for  the  defendant  then  ob- 
jected  to  the  confession  being  received  in  evidence,  because  it  was 
obtained  under  inducements  held  out  by  the  sheriff.  The  court 
ovemded  the  objection.  The  court  charged  the  jury  that  a 
conviction  could  not  be  had  on  the  testimony  of  accomplices 
alone.    Tlie  defendant  was  convicted,  and  appealed. 

Collins  t5  Ihirt,  for  the  appellant,  argued  that,  excluding  the 
confessions  testified  to  by  Eondel,  tliere  was  no  testimony  except 
that  of  accomplices,  contending  that  Ilinman  was  an  accomplice. 
As  to  Rondel's  testimony,  they  argued  that  it  should  have  Ijeeu 
excluded,  and  cited  People  v.  Jones,  31  Cal.,  5G7;  PeopU  v. 
Jlenessy,  IG  Wend.,  147;  People  v.  Badyley,  id.,  53;  and  Jlayor, 
etc.,  of  N.  Y.  V.  Walker,  4  E.  D.  Smith,  25S. 

Tliey  also  argued  that  it  was  error  to  admit  parol  evidence 
that  the  company  kn(nvn  by  the  name  of  the  "Quicksilver  Min- 
ing Company  of  Xew  York  "  was  doing  business  as  a  corpora- 
tion de  facto  in  California,  but  contended  that  proof  should  have 
been  made  tliat  the  laws  of  Kew  York  allowed  corporations  to 
be  formed  there  for  quicksilver  mining,  and  that  the  corporation 
had  an  existence  there. 

Moore,  Lanie,  Dehnas  tG  Leih,  for  the  people,  argued  that  the 
confession  of  the  defendant  was  voluntary,  and  that  there  was  no 
error  in  admitting  the  testimony  as  to  the  corporation,  and  cited 
People  V.  ILujhes,  2!)  Cal.,  257;  People  v.  P^rank,  28  id.,  ry^fr, 
and  People  v.  Ah  Sam,  41  id.,  045. 

McKiNSTUv,  J.  Defendant  was  indicted  for  feloniously  steal- 
ing quicksilver,  the  property  of  the  "  Quicksilver  Mining  Com- 
pany of  Xew  York." 

The  prosecution  proved  by  the  witness  Rondel  that  the  com- 
pany known  by  the  name  given  in  the  indictment  was  a  cori.ora- 
tion  de  facto,  doing  business  as  such.  This  was  sufficient.  Peo- 
ple V.  Frank,  28  Cal.,  507;  J*eople  v.  Ilwjhes,  29  id.,  257;  Peo- 
ple '0.  Ah  Sam,  41  id.,  (545. 

The  witness  Ilinnuvn  was  not  an  accessory  before  the  fact.  It 
does  not  appear  from  the  transcript  that  he  knew  anything  of 
the  alleged  crime  until  after  it  was  committed. 

The  confessiun  testified  to  by  Rondel,  tlie  superintendent  of 
the  com])any,  in  the  sheriff's  office,  and  in  the  presence  of  the 
sheriff  and  his  deputy  is  to  be  regarded  as  if  made  to  the  sherifi". 


PEOPLE  V.  BAKRIC. 


181 


The  following  is  a  traiiscriiit  from  the  record. 

"  Q.  Did  you  say  to  him  that  it  would  be  better  for  him  to 
make  a  full  disclosure? 

"A.  I  don't  know  but  that  something  of  that  kind  mig^^t 
have  been  said. 

"  Q.  Do  you  know  by  whom  ? 

"  A.  I  do  not  know. 

"Q.  But  by  some  one  of  you? 

"A.  It  may  have  been  said. 

"Q.  Isn't  it  your  impression  that  some  such  remark  was  made 
tolilni? 

"A.  It  is  possible." 

The  witness  was  then  permitted  to  detail  the  confession  not- 
withstanding the  objection  of  defendant. 

"Before  any  confession  can  be  received  in  a  criminal  case,  it 
must  be  shown  that  it  was  voluntary.  The  course  of  practice  is, 
to  inquire  whether  the  prisoner  liad  been  told  that  it  would  bo 
better  for  him  to  confess,  or  worse  for  him  if  he  did  not  confess, 
or  whether  language  to  that  efl'ect  had  been  addressed  to  him." 
1  Greeul.  Ev.,  219.  The  court  below  should  have  been  satisfied 
that  the  'onfesiiion  was  voluntary;  certaiidy  the  preliminary 
testimony  was  of  a  nature  to  excite  the  gravest  suspicion  that 
improper  inducements  had  been  held  out  to  elicit  it.  But  the 
testimony  affirmatively  established  the  inadmissibility  of  evi- 
dence of  the  confession.  It  would  be  substitutinir  sound  for 
sense  to  say  that  the  prosecuting  witness  did  not  in  effect  declare 
that  the  sheriff  or  his  deputy,  or  he  himself  in  their  presence 
and  hearing,  said  to  the  prisoner,  "  It  will  be  better  for  you  to 
make  a  full  disclosure." 

The  rule  is  without  exception  that  such  a  promise  made  by 
one  in  authority  will  exclude  a  confession.  Public  policy  abso- 
lutely requires  the  rejection  of  confeosions  obtained  by  means  of 
inducements  held  out  by  such  persons.  It  may  be  true,  even  in 
such  cases  —  owing  to  the  variety  in  character  and  circum- 
stances—  that  the  promise  may  not  in  fact  induce  the  confession. 
But  as  it  is  thought  to  succeed  in  a  large  majority  of  instances, 
it  is  wisely  adopted  Jis  a  rule  of  law  applicable  to  them  all.  Id., 
222,  223,  and  cases  cited. 

We  cannot  too  strongly  urge  on  the  district  attorneys  never 
to  offer  evidence  of  confessions,  except  it  has  first  been  made  to 


li   ■:% 

1 

M 

''MKoBSm 

ii 

;?B 

:,i 

i 


IS: 


AMERICAN  CRIMINAL  REPORTS. 


I' i 


appear  tliat  thcj  were  made  voluntarily.  AVe  ought  not  to  be 
compelled  to  reverse  a  judgment  because  of  a  violation  of  go 
well  established  a  rule  of  law. 

The  defendant  asks  to  he  finally  discharged  because  he  did  not 
move  for  a  new  trial  in  the  court  below.  J'ut  the  question  sug- 
gested  by  this  apidicatlon  has  been  passed  upon  by  this  court, 
and  we  see  no  good  reason  for  disturbing  the  former  ruling. 
People  V.  Ohoell,  2S  Cab,  45G. 

Judgment  reversed  and  cause  remanded  for  new  trial. 

Neither  Mr.  Justice  Ckockktt  nor  Mr.  Justice  Euodes  ex- 
pressed an  opinion. 


mm 


State  vs.  Gkauam. 

(74N.  C,  646.) 
Evidence:    Confession. 

A  prisoner,  arrested  for  larceny  of  growiu!,'  com,  wius  coin])cllocl  by  the  officer 
who  arrested  loim  to  put  his  foot  into  a  fri'sh  track  in  tiie  field  where  tlie 
com  was  growing.  It  wa.s  Jivhl  proper  for  the  officer  to  testify  as  to  the 
coiTcspondence  between  the  piisoner's  foot  and  the  track,  and  that  the  evi- 
dence should  not  be  excluded,  because  obtained  th     igh  fear  or  force. 

Confessions  obtained  through  fear  or  hope  are  inadniis.-,  ole,  because  the  fiMror 
hope  may  so  influence  the  prisoner's  niind  lus  to  induce  him  to  nialce  false 
statements.  But  if  independent  fiU'ts  or  cuTumstaiices  are  learned  tlu'oiijrli 
force,  fear  or  hope,  evidence  of  the  facts  or  circumstances  is  adniissible,  Iw- 
cause  the  fear  or  hope  operating  on  the  prisoner's  mmd  can  have  no  teniloiKy 
to  distort  them. 

IloDMAM,  J.  The  first  exception  is,  because  the  judge  per- 
mitted the  officer  who  had  the  prisoner  in  custody  to  testify 
that  he  made  the  prisoner  put  his  foot  in  the  tracks  found  in  the 
prosecutor's  field,  and  that  his  foot  fitted  the  tracks  perfectly. 
It  is  argued  that  making  the  prisoner  put  his  foot  in  the  track 
was  procuring  evidence  by  duress,  and  the  case  of  17ie  State  v. 
Jacobs,  5  Jones,  259,  is  cited. 

The  object  of  all  evidence  is  to  elicit  the  truth.  Confessions 
Avhich  are  not  voluntary,  but  are  made  either  under  the  fear  of 
punishment  if  they  are  not  made,  or  in  the  hope  of  escaping 
punishment  if  they  are  made,  are  not  received  as  evidence,  be- 
cause experience  shows  that  they  are  liable  to  be  influenced  by 


STATE  t'.  GRAHAM. 


1S3 


those  motives,  and  cannot  be  relied  on  as  guides  to  the  truth. 
But  this  objection  will  not  apply  to  evidence  of  the  sort  before 
us.  .*.o  fears  or  hopes  of  the  prisoner  could  produce  the  resem- 
blance of  his  track  to  that  found  in  the  corn  iield.  This  resem- 
blance was  a  fact  calculated  to  aid  the  jury,  and  tit  for  their  con- 
sideration. 

Evidence  of  this  sort,  called  by  the  civilians  "  real  evidence," 
IS  always  admissible,  and  is  of  greater  or  less  value,  according  to 
tlie  circumstances.  In  Best  on  Evidence,  sec.  183,  the  following 
iiiiitances  of  its  value  are  given:  "  In  a  case  of  burglary,  where 
the  tliief  gained  admittance  into  the  house  by  opening  the  win- 
dow with  a  pen  knife,  which  was  broken  in  the  attempt,  and  a 
part  of  the  blade  left  sticking  in  the  window  frame,  a  broken 
knife,  the  fragment  of  wiac))  corresponded  with  that  in  the 
frame,  was  found  in  the  poclret  of  the  prisoner.  So  where  a 
man  was  found  killed  by  a  pistol,  the  wadding  in  the  wound  con- 
sisted of  part  of  a  printed  paper,  the  corresponding  part  of  which 
was  found  in  the  pocket  of  the  prisoner.  In  another  case  of 
nnu'der,  a  patch  on  one  knee  of  the  prisoner's  breeches  corres- 
ponded with  an  impression  found  on  the  soil,  close  to  the  place 
where  the  murdered  body  lay.  In  a  case  of  robbery,  the  prose- 
cutor when  attacked  struck  the  robber  in  the  face  with  a  key, 
and  a  mark  of  a  key  with  corresponding  wards  was  visible  on 
the  face  of  the  prisoner,"  etc.  Similar  instances  might  be  cited 
indefinitely.  The  exception,  however,  is  that  the  ofticer  made 
the  prisoner  put  his  foot  in  the  track,  in  order  to  test  the  re- 
semblance. It  has  been  seen  that  this  could  not  alter  the  fact  of 
the  resemblance,  which  is  the  only  matter  that  would  have  weight 
as  evidence.  It  has  been  often  held  that  if  a  person  under  du- 
ress confesses  to  having  stolen  goods  and  deposited  them  in  a 
certain  place,  although  his  confessio.iof  the  theft  will  be  rejected, 
yet  evidence  that  he  stated  where  the  goods  were  will  be  re- 
ceived, provided  the  goods  were  found  at  the  place  described. 
Reg.  V.  Gould,  9  C.  &  P.,  304;  Duff,/  v.  People,  25  N.  Y.,  588; 
WliUe  V.  State,  3  Keisk.,  338;  Selidyev.  State,  30  Tex.,  CO. 

The  fact  of  the  goods  being  found  in  the  place  described, 
proves  that  he  knew  where  they  were,  and  this  knowledge  is  a 
fact  bearing  on  the  question  of  his  guilt,  to  which  the  jury  is 
entitled.  An  officer  who  arrests  a  prisoner  has  a  right  to  take 
any  property  which  he  has  about  him,  which  is  connected  with 


H 


isi 


AMERICAN  CRIMINAL  REPORTS. 


• 


tlic  crime  charged,  or  which  may  be  required  as  evidence.  Eos- 
coe  Cr.  Ev.,  211;  Ji.  v.  O'Bonnell,  7  C  &  B.,  138  (32  E.  C.  L. 
R.);  II.  V,  Kiiv^ey^  id.,  447;  It.  v.  Burgess,  id.,  488;7i'.  v.  Boon- 
ey,  id.,  515. 

If  an  officer  Avho  arrests  one  charged  with  an  offense  lias  no 
riglit  to  make  tlie  prisoner  show  the  contents  of  his  pocket,  liow 
could  the  broken  knife,  or  the  fragment  of  paper  corresjiondino- 
with  the  wadding,  have  been  found.  If,  when  a  prisoner  is  ar- 
rested for  passing  counterfeit  money,  the  contents  of  his  pock- 
ets are  secured  from  search,  how  can  it  ever  ap])ear  whether  or 
not  he  has  on  his  person  a  large  number  of  similar  bills,  which 
if  proved,  is  certainly  evidence  of  the  scienter?  If  an  officer 
sees  a  pistol  projecting  from  the  pocket  of  a  prisoner  arrested 
for  a  fresh  murder,  may  he  not  take  out  the  pistol  against  the 
prisoner's  consent,  to  see  whether  it  appears  to  have  been  recent- 
ly'discharged?  Supj)osc  it  be  a  question  as  to  the  identity  of 
the  prisoner,  whether  a  person  whom  a  witness  says  ho  saw  com- 
mit a  murder,  and  the  prisoner  appears  in  court  with  a  veil  or  a 
mask  over  his  face,  may  not  the  court  order  its  removal  in  or- 
der that  the  witness  may  say  whether  he  was  the  person  whom 
he  sawccmmit  the  crime?" 

Would  the  robber  whose  face  was  marked  with  the  wards  of  a 
key  have  been  allowed  to  conceal  his  identity  by  wearing  a  nuisk 
during  his  trial? 

Wc  conceive  that  these  questions  admit  of  but  one  answer, 
and  that  one  is  consistent  with  the  general  ])ractice. 

AVe  concur  with  the  judge  below,  that  the  officer  had  a  right 
to  take  off  the  boots  or  shoes  of  the  prisoner  and  compare  them 
with  the  tracks  in  the  corn  field.  And  wc  also  agree  with  him 
in  the  opinion  that  when  the  prisoner,,  upon  being  required  by 
the  officer  to  put  his  foot  in  the  track,  did  so,  the  officer  might 
properly  testify  as  to  the  result  of  the  comparison  thus  nuide. 
It  is  unnecessary  to  say  whether  or  not  the  officer  might  have 
compelled  the  ]>risoner  to  put  his  foot  in  the  tracks  if  he  had 
persisted  in  refusing  to  do  so.  The  refusal  and  the  result  of  the 
comparison  made  by  the  officer  between  the  track  and  the  pris- 
oner's shoes  would  have  been  competent. 

There  Ls  no  error.    Judgm.eat  affirmed.     Let  this  opinion  be 

certified. 

Judgment  affirmed. 


STATE  p.  SCANLAN.  185 

State  vs.  Scanlan. 

(58  Mo.,  204.) 
Evidexce:    Question  of  fact  —  Cupaciti/  of  child  as  witness. 

A  girl  whom  the  court  by  inspection  dotonnincd  to  be  between  nine  and  ten 
years  old,  beinj?  offered  an  a  wtne.ss,  wa-s  objected  to.  Being  examined  as 
to  her  qualifications,  she  appeared  veiy  nervous  and  frightened,  and  said 
she  could  not  tell  her  age,  and  did  not  know  the  nature  or  obligation  of  an 
oath,  or  what  the  consequences  would  be  of  swearing  falsely.  On  a  reex- 
amination she  said  she  wa-s  the  datighter  of  the  resiiondent,  knew  her 
prayers,  could  fCiul  some,  Ijelieved  in  God,  and  thought  it  wi'ongto  tell  lies: 
Jlihl,  that  she  was  properly  received  as  a  witness. 

The  question  of  the  competency  of  a  witness  is  a  question  of  fact,  to  be  deter- 
mined by  the  trial  judge  Ijy  pei-sonal  inspection  and  oral  examination,  and 
his  decision  is  not  subject  to  revision. 

Lewis,  J.  The  defendant  was  convicted  of  mtirder  in  the  first 
(Icree,  committed  upon  his  wife,  and  sentenced  to  death.  His 
appeal  to  this  court  brings  us  hut  one  question  for  review.  This 
appears  in  the  following  extract  from  the  bill  of  exceptions: 

"The  state  then  ofiercd  as  a  witness,  in  behalf  of  the  prosecu- 
tion, Mamie  Scanlan.  Upon  being  thus  presented,  the  defend- 
ant objected  to  her  being  sworn  and  examined  because  of  her 
tender  years;  whereupon  she  was  examined  by  the  judge  respect- 
ing her  qualifications  as  a  witness;  and  upon  this  examination,  the 
child,  being  much  frightened  and  scarcely  able  to  speak,  stated 
to  the  judge  that  she  could  not  tell  her  age,  that  she  did  not 
know  the  nature  or  obligation  of  an  oath,  nor  what  would  be  the 
consequences  of  false  swearing.  The  answers  of  the  child  to  the 
(piestions  of  the  judge  were  invariably  in  monysyllables,  yes  or 
no,  and  uttered  in  a  tone  scarcely  audible.  Upon  the  first  exam- 
ination, the  judge  refused  to  have  her  sworn.  Upon  a  reexamin- 
ation, however,  the  court,  from  inspection  of  the  witness,  judged 
lier  to  be  betwec.i  nine  and  ten  years  of  age;  and  having  Y)ar- 
tially  recovered  from  a  friglit  occasioned  by  surroundings  en- 
tirely new  to  her,  the  judge  ascertained  from  her  statements  that 
she  was  the  daughter  of  the  defendant,  that  she  knew  her  prayers, 
could  read  some,  believed  in  God,  and  thought  it  wrong  to  tell 
lies.  She  further  stated  that  she  was  present  at  the  time  her 
mother  was  injured  by  tlie  defendant.  And  thereupon  the  judge 
directed  the  witness  to  be  sworn  as  a  witness  in  the  case.    To 


^'ilVf 


ISG 


AMERICAN  CRIMINAL  REPORTS. 


II 

it 


which  decision  of  the  court,  allowing  said  witness  to  he  sworn, 
the  defendant,  by  his  counsel,  then  and  there  excepted." 

AV^e  find  here  nothing  which  by  any  rule  of  law  or  jjractice 
will  permit  us  to  interfere  with  the  verdict.  The  ruling  uf  tlio 
criminal  court  embodied  no  proper  subject  for  appellate  i^evii^ion. 
The  capacity  or  incapacity  of  the  child  as  a  witness,  in  certain 
essential  particulars,  was  a  question  of  fact  which  the  judge  de- 
termined upon  personal  inspection  and  oral  examinution.  If 
any  principle  of  law  had  been  declared  by  him,  as  that,  althuugli 
found  inca))able  of  discriminating  between  truth  and  fajj^ehuutl, 
the  law  made  her,  nevertheless,  a  competent  witness,  that  might 
well  be  brought  here  for  review.  Ihit  I  can  find  no  case  iu 
which  it  is  held  proper  for  an  appellate  court  to  review  the  find- 
ing of  fact.  The  contrary  rule  is  declared  by  all  respectable  au- 
thorities. No  hardship  necessarily  results;  for  if  the  judge 
should  chance  to  err  in  his  conclusion,  the  jury  hold  a  powerful 
corrective  in  their  right  to  pass  upon  the  credibility  of  the  wit- 
ness, as  tested  on  the  stand  by  the  usual  appliances. 

But  aside  from  this  view  —  with  which,  were  not  a  human 
life  involved,  we  might  easily  dismiss  the  subject  —  we  cannot 
discover  any  reason  to  doubt  the  entire  propriety  of  the  court's 
permitting  the  witness  to  testify. 

The  history  of  criminal  procedure  in  this  and  the  mother 
country  abouiuls  in  illustrations  of  a  judicial  care  which  seeks 
to  secure,  on  the  one  hand,  whatever  pertinent  testimony  may 
bring  a  guaranty  of  conscious  moral  responsibility,  and  on  tho 
other,  to  adniit  none  that  may  be  offered  without  it.  Distinc- 
tions and  general  rules  have  assumed  various  forms;  but  tlic 
spirit  of  all,  as  applied  to  children  of  tender  years,  appears  in 
the  simple  formula  of  our  own  statute.  The  rule  (Wagn.  Stat., 
1374,  §  8)  excludes  merely  "  a  child  under  ten  years  of  age,  wlio 
appears  incapable  of  receiving  just  imi)ressions  of  the  facts  re- 
specting which  they  are  examined,  or  of  relating  them  truly." 

We  can  discover  no  token  of  any  such  incapacity  iiv  the  final 
answers  given  to  the  judge  by  the  witness  in  this  case.  The 
course  pursued  on  the  occasion  was  eminently  proper.  There  is 
a  practice  sanctioned  by  time-honored  precedent,  under  whicli, 
when  a  child  is  found  too  young  fo  testify  with  a  ])roper  sense 
of  responsibility,  the  trial  may  be  postponed  until  the  witness 
shall  have  been  suitably  instructed.    This,  however,  has  been 


I 


■.'«^ 


DANIEL  r.  STATE. 


187 


criticised,  as  like  "  preparing  or  getting  np  a  witness  for  a  par- 
ticular piir]iosc."  In  the  present  case,  even  that  objection  dis- 
appears. AVhile  the  child  was  so  laboring  under  nervous  agita- 
tion from  the  novelty  of  the  surroundings  as  to  give  unintelli- 
ble  or  absurd  answers,  she  was  not  permitted  to  testify.  The 
court  merely  waited  for  a  natural  recovery  of  mental  equilibri- 
um, wliich  should  permit  the  true  capabilities  of  the  witness  to 
appear.  ISfo  sign  was  visible  then  in  her  examination  that  she 
vas  incapable  either  of  receiving  just  impressions  of  the  facts 
about  which  she  was  to  testify,  or  of  relating  them  truly.  "We 
can  find  no  error  in  the  record. 
The  judgment  is  affirmed;  the  other  judges  concur. 


{' Vi  ■ 


mi 


Daniel  vs.  State. 

(55  Ga.,  222.) 

Evidence:    Memoramlum. 

Where  a  witness  refers  in  his  testimony  to  a  niomoranih-.m  as  showing  a  fact 
uivol  vod  ill  i\\k  issue,  and  states  that  ho  has  such  memorandum  in  his  pocket, 
it  is  en-or  for  tlie  court  to  refuse  to  compel  tlie  witness  to  produce  the  mem- 
orandum. 

"Wakxer,  C.  J.  It  appears  from  the  evidence  in  the  record 
that  the  defendant  claimed  an  interest  in  the  bale  of  cotton 
alleged  to  have  been  stolen  by  him;  that  he  took  it  publicly  in 
the  day  time  from  the  gin-house  where  it  was  ginned;  that  he 
raised  the  cotton;  that  the  extent  of  his  interest  in  it  depended 
on  the  settlement  of  the  accounts  between  him  and  Reid.  The 
county  court  erred  in  not  re(]uiring  the  witness  Ileid,  to  pro- 
duce the  book  of  account  against  the  defendant,  which  he  ad- 
nutted  he  then  had  in  his  pocket,  inasmuch  as  he  referred  to 
that  hook  of  account  in  his  testimony,  as  containing  a  statement 
of  the  defendant's  indebtedness  to  him. 

[The  rest  of  the  opinion  is  not  considered  of  sufficient  importance  to  be  given.— 
Rep.] 

XoTE.  — So  in  Duncan  v,  Seelei/,  34  Mich.,  3G9,  the  court  say:  "On  the  trial, 

the  plauitiff,  being  on  the  stand,  was  questioned  by  his  counsel  as  to  the  time 

.  when  lie  was  at  the  place  of  the  alleged  sale  after  the  sale  was  made;  it  being 

dci;med  important  to  show  that  he  was  there  on  a  certain  day.    Plaintiff  in  reply 


WIS 


[t'h 


188 


AMERICAN  CRIMINAL  REPORTS. 


stated  tlint  ho  could  not  state  positively  without  looking  at  soiuetliiiif,'  to  ivficj-h 
his  memory.  And  after  professiny  to  look,  ho  stated  further  tlial  wliiit  he  li;;(l 
looked  at  did  ret'resli  liin  memory.  He  wiw  tlien  called  upon  by  det'endunt's  (uini- 
Bel  to  produce  the  meuioranduui  at  whieli  he  hatl  looked,  l>ut  the  counsel  furtlio 
pliuntiff  olijected,  and  tlie  court  sustained  the  olijection.  ^\  c  thifik  tliis  wns  I'vro- 
neous.  Tiie  witness  wii.s  in  eti'ect  testifying,  not  from  recollection,  but  from  sdnu!- 
tliinj?  whidi  he  professed  to  have  in  writing?;  and  the  otlier  party  liad  a  rijflit  to 
know  wiiat  tiie  memorandum  was  on  whieii  he  relied,  and  whether  it  iuul  any 
Icj^itimate  tendency  to  briufi:  the  fact  in  controversy  to  mind.  It  would  be  a  dan- 
gerous doctrine  whidi  would  permit  a  witness  to  testify  from  secret  memoranda 
in  the  way  which  was  permitted  here.  The  error  was  not  cured  in  this  ca.s.'  by 
the  plaintitl'  offerinj,'  on  the  next  day,  on  the  conclusion  of  his  testimony,  to  pro- 
duce the  memorandum.  The  defendant  wax  entitled  to  see  it  at  the  time,  in  ordi-r 
to  test  the  candor  and  inteiuxity  of  the  witness;  and  tlio  opportunity  for  ^udi  a 
test  mi},'lit  be  lost  by  a  delay  which  nn  unscnipulous  witness  might  improve  by 
preparing  or  procuring  something  to  exhibit." 


A' 


"■H 


Bennett  vs.  State. 

(o2  Ala.,  370.) 

Evidence  :    Conchtsion  of  fact  —  Itreleiant  erulcnce  —  Warehouse. 

It  is  not  competent  for  a  witness  who  has  testifii'd  "that  he  slept  in  the  sanio 
room  with  the  prisoner  the  same  right  tliat  the  crime  he  is  charjriMl  witii 
was  conunitted,  that  the  witness  was  wakeful;  that  he  saw  the  prisoner  go 
to  bed,  and  found  him  in  bed  the  next  morning  when  he  woke  up,"  totcstify 
further,  that  in  his  opinion  the  prisoner  could  not  have  gone  out  without 
his  knowledge.  This  would  be  testifyhig  to  an  inference  of  fact  whidi  it  is 
the  province  of  the  jury  to  draw. 

In  a  prosecution  for  larceny,  it  is  not  relevant  to  prove  that  third  parties,  who 
had  an  opportunity  to  commit  the  crime,  were  of  biul  charact(>r,  such  tliird 
pailies  not  being  witnesses,  or  charged  with  the  crime,  or  otherwise  con- 
nected with  the  case. 

A  building  roofed  over,  of  which  one  side  and  one  end  are  planked  up,  the 
other  side  and  end  being  left  open  so  that  wagons  could  drive  imder,  used 
for  storing  cotton,  and  being  enclosed,  together  with  about  two  aci'cs  of  land, 
by  a  tight  plank  fence,  nine  feet  liigh,  the  gates  of  which  are  kept  locked,  is 
a  warehouse. 

Appeal  from  Circuit  Court  of  Wilcox.  Tried  before  Hon. 
John  K.  Henry. 

The  appellants  were  convicted  of  larceny  from  a  warehouse, 
under  §  3707  of  the  Eevised  Code.  On  the  trial  one  of  them 
sought  to  establish  an  alibi.  A  witness  for  the  defense  testified 
that  he  was  very  wakeful;  that  he  saw  Bennett  go  to  bed  in  the 


BENNETT  v.  STATE. 


189 


Batne  room  in  which  witness  slept  that  night,  and  found  Iiim 
next  morning  when  ho  awoke;  that  there  were  two  duors  to  the 
room;  that  these  were  the  only  openings,  and  that  witness  si  'pt 
near  one  of  them.  The  defense  then  "oll'ered  to  show  to  tho 
jury,  that  in  the  opinion  of  this  witness,  defendant  coiild  not 
have  left,  or  got  out  of  the  liouse  without  witness  knowM-g  it." 
The  court  refused  this  offer,  and  "  would  not  allow  said  evidence 
as  to  the  witness'  opinion  to  go  to  the  jury,  and  defendants  duly 
excepted."  In  the  further  prcjgress  of  the  trial,  the  defendants 
ofl'ered  to  show  that  the  employees  at  the  warehouse,  from  which 
the  larceny  \\m  committed,  but  who  were  not  witnesses,  or  in 
any  way  connected  with  tho  case,  or  charged  with  the  theft, 
"were  of  bad  character."  The  court  refused  to  allow  this  proof 
to  be  nuido,  and  the  defendants  duly  exce])ted. 

The  evidence  showed  that  the  building  from  which  the  cotton 
was  stolen,  was  a  covered  structure,  used  for  storing  cotton  bales. 
One  side  and  end  were  planked  up,  and  the  other  left  open,  so 
that  wagons  could  drive  under  the  shed  thus  formed,  to  load  and 
unload.  The  structure,  together  with  two  acres  of  land  connected 
therewith,  was  inclosed  by  a  close  plank  fence  nine  feet  high, 
the  gates  of  which  were  kept  locked.  The  court  charged  tho 
jury,  if  they  believed  that  such  was  the  character  of  the  place 
from  which  the  cotton  was  stolen,  and  that  it  was,  i.ised  for  stor- 
ing cotton,  it  was  a  "  warehouse  "  within  the  meaning  of  the 
statute.  The  cefendants  excepted  to  the  giving  of  this  charge. 
The  various  ridings  to  which  exceptions  were  reserved  arc  now 
assigned  as  error. 

John  2[vCasJdll,  for  appellants:  The  witness'  opinion,  on 
facts  already  given  the  jury,  should  have  been  allowed  for  what 
it  was  worth.     29  Ala.,  244;  19  Ohio,  302. 

Johro  ir.  A.  San/ord,  attorney  general,  with  whom  J.  T". 
KUpatt'icTc,  contra:  The  court  did  not  err  in  refusing  to  per- 
mit the  witness  to  give  his  opinion.  He  was  not  an  expert. 
8  Watts,  400;  52  Mo.,  &21;  Whittler  v.  Town  of  JSTeio  JIam;p. 
shire,  Am.  Law  Reg.,  vol.  14,  704. 

Brickei.l,  C.  J.  It  is  peculiarly  the  province  of  the  jury  to 
draw  deductions  or  inferences  from  facts,  and  it  is  seldom,  if  ever, 
permissible  for  a  witness,  not  an  expert,  to  give  his  mere  opinion 
—an  opinion  which  is  a  mere  inference  from  facts -^  when  the 


M 


|: 


m 


;  1  " ■;  j    r 


■'M 


*5 


190 


AMERICAN  CRIMINAL  REPORTS. 


jury  are  erpally  competent  as  to  such  matter  to  form  tlio  opin- 
ion or  deduce  the  conclusion  sought  from  the  facts,  Tlie  witness 
in  this  case  was  not  an  expert.  The  matter  about  which  liis 
opinion  was  sought  was,  as  to  an  inference  from  facts,  which  it 
required  no  peculiar  skill,  or  particular  fitness  or  experience  to 
solve.  Whether  the  event  could  have  happei>ed,  as  to  the  occur- 
rence of  which  the  witness'  opinion  was  desired,  was  a  matter 
of  which  the  jury,  guided  by  their  observation  and  experience, 
and  the  circumstances  of  the  particular  case,  were  the  best  and 
only  judges.  The  question  asked  went  to  the  merits  of  the  whole 
case.  There  is  no  appreciable  diti'erence  between  the  opinion 
asked  for,  and  a  request  for  the  witness'  opinion  as  to  whether 
the  alili  was  proved.  The  question  colled  for  an  opinion  which 
was  clearly  inadmissible,  and  the  court  rightly  refused  to  permit 
the  witness  to  answer.  State  v.  Garvcy,  11  Minn.,  1C3;  Don 
Crane  and  wife  v.  Toion  of  Northfield,  33  Vt.,  121;  Com.  v. 
Cooley,  6  Gray,  355;  Pelumourges  v.  Clark,  9  la.,  16;  Walkei' 
V.  Walker,  31  Ala.,  373. 

II.  The  court  did  not  err  in  refusing  to  allow  the  defeiulants 
to  show  the  "  bad  character  "  of  those  in  charge  of  the  yard  and 
press.  It  is  expressly  stated  that  they  were  not  witnesses,  or 
charged  M'ith  the  theft,  or  otherwise  connected  with  the  case. 
Such  an  issue  was  wholly  foreign  to  that  on  trial.  The  proof 
offered  would  have  needlessly  incumbered  the  case,  served  tu  dis- 
tract the  attention  of  the  jury  from  the  main  points  involved, 
and  have  uselessly  wasted  the  public  time.  It  would  be  a 
dangerous  jn-ecedent  to  .allow  a  defejidant  to  take  up  the  time  of 
the  court  in  showing  that  parties  living  near  the  scene  of  the 
crime,  or  who  liad  an  opportunity  to  commit  it,  were  of  bad 
character;-  there  often  would  be  no  end  to  the  incjuiries  tlius 
submitted  to  the  jury,  and  the  trial  of  criminal  cases  could  there- 
by be  protracted,  sometimes  beyond  the  term  during  which  the 
Courtis  authorized  to  sit.  The  evidence  was  inadmissible  for 
another  reason.  It  diil  not  show  whetlicr  the  bad  character  was 
as  to  truth  and  veracity,  or  for  honesty.  If  the  proposed  evi- 
dence was  as  to  the  character  for  truth  and  veracity,  it  would 
clearly  be  inadmissible,  where  the  parties  referred  to  were  not 
witnesses  or  otherwise  connected  with  the  case,  even  if  we  could 
see  that  evidence  of  bad  character  for  lionesty  Avas  admissible. 

III.  There  is  nothing  in  the  error  assigned  as  to  tlie  charge  of 


WRIGHT  t'.  STATE. 


101 


tlie  court.  Under  the  eridence  in  this  case  the  structure  men- 
tioned was  a  "  warelionse  "  within  tlie  meaning  of  §  3707  of  the 
Revised  Code.  Jlagaii  et  al.  v.  State,  in  MS.  Besides  this,  the 
exception  is  a  mere  general  exception  to  the  entire  charge  of  the 
court,  not  specifying  the  objectionable  parts.  In  such  cases,  if 
any  proposition  in  the  charge  is  correct,  the  exception  is  not 
availivble. 
The  judgment  of  the  court  below  is  affirmed. 


"WuiOHT  vs.  State. 
(50  Miss.,  G;32.) 
Evidence:    Deposition  hcfore  committtng  magistrates. 

Where  the  law  roqiiircs  a  committing  magistrate  to  take  the  voluntary  confes- 
sion of  the  iiccused  in  writing,  the-  writing  is  the  best  evidence  of  what  state- 
ment ho  made  on  his  cxiimination,  ami  wthout  proof  of  the  loss  or  destruc- 
tion of  thi!  writing,  it  is  not  competent  to  prove  by  parol  what  the  accused 
said  on  sucii  examination. 

PEYro:^  C.  J.  It  ap])ears  that  the  plaintiff  in  error  in  this 
case  was  convicted  in  the  circuit  court  of  Hinds  county,  in  the 
second  district  thereof,  of  the  murder  of  one  Charles  Ivelker,  and 
sentenced  to  be  hung,  and  hence  the  case  comes  to  this  court  by 
\vrit  of  error. 

Various  errors  are  assigned  here  in  the  record  of  tiie  proceed- 
ings and  judgment  in  the  court  below.  But  in  the  view  we  take 
of  this  case,  we  deem  it  necessary  to  notice  only  the  tenth  as- 
signment of  error,  which  impeaches  the  correctness  of  the  ruling 
of  the  court,  in  admitting  oral  evidence  of  what  the  defendant 
said  in  his  voluntary  statement  before  the  justice  of  the  peace, 
under  tlie  circumstances  set  forth  in  the  record. 

It  is  provided  in  section  2S25  of  the  code  of  1871,  that  in  all 
criniiiuil  cases  brought  before  any  justice  of  the  peace,  he  shall 
take  tlie  voluntary  confession  of  .:ij  accused,  and  the  substance 
of  tlic  material  testimony  of  all  the  witnesses  examined  before 
him,  in  writing,  and  shall  inform  the  Jiccused  of  his  right  to  in- 
terrogate such  witnesses.  Which  questions,  and  the  answers 
thereto,  he  shall  also  reduce  to  writing;  the  said  proceedings  and 
testimony,  so  taken  and  had,  the  said  justice  shall  certify  and 


4'm 


192 


AMERICAN  CRIMINAL  RErORTS. 


send  up,  togetlier  with  the  bonds  and  recognizances  of  the  ac- 
cused, and  tlie  prosecutor  and  witnesses,  to  the  next  term  of  the 
circuit  court  of  the  proper  county,  on  or  before  the  first  day  of 
tlie  term. 

On  the  trial  in  tlie  court  below,  one  Daniel  Murchison,  a  wit- 
ness on  the  part  of  the  state,  was  permitted  to  testify  as  to  what 
the  accused  had  said  in  his  voluntary  statement  before  the  com- 
mittin"'  magistrate,  in  opposition  to  objections  from  defendant's 
counsel.  Said  witness  testified  that  he  believed  he  remembered 
the  substance  of  said  statement,  but  that  other  matters  might 
have  been  mentioned  in  that  voluntary  statement  which  witness 
did  not  remember,  as  he  did  not  ])ay  any  very  marked  attention 
to  the  statement,  although  he  was  listening  to  the  examination. 
The  said  voluntary  statement  was  reduced  to  writing,  and  signed 
by  the  defendant,  and  produced  in  court  by  the  prosecution. 

As  a  general  rule,  applicable  as  well  in  civil  as  criminal  pro- 
ceedings, the  law  requires  the  production  of  the  best  evidence  of 
which  the  case,  in  its  nature,  is  susceptible.  This  rule  docs  not 
demand  the  greatest  amount  of  evidence  which  can  possibly  be 
given  of  any  fact,  but  its  design  is  to  prevent  the  introduction 
of  any  which,  from  the  nature  of  the  case,  supposes  that  better 
evidence  is  in  the  possession  of  the  party.  It  is  adopted  for  the 
prevention  of  fraud,  for  when  it  is  apparent  that  better  evitlence 
is  withheld,  it  is  fair  to  presume  that  the  party  has  some  sinister 
motive  for  not  producing  it,  and  that  if  offered,  his  design  wonld 
be  frustrated.  The  rule  thus  becomes  essential  to  the  j)ure  ad- 
ministration of  justice.  In  requiring  the  production  of  the  best 
evidence  applicable  to  each  particular  fact,  it  is  meant  that  no 
evidence  of  a  nature  merely  substitutionary  shall  bo  received 
when  tl  <  primary  evidence  is  produceable. 

As  the  statute  requires  that  the  justice  of  the  peace  shall  re- 
duce to  writing  the  voluntary  confession  of  the  accused,  and  shall 
certify  and  send  up  the  same  to  the  next  term  of  the  circuit  conrt 
of  the  pro])er  county,  on  or  before  the  first  day  of  the  term,  the  law 
conclusivehj jyf't'sit mes  that  if  anything  was  taken  down  in  writ- 
ing, the  justice  of  the  peace  performed  his  whole  duty,  by  taking 
down  all  that  was  material.  In  such  case,  no  i)arol  evidence  of 
what  the  prisoner  may  have  said  on  that  occasion  can  be  received. 
But  if  it  be  shown  that  the  examination  was  not  reduccl  to 
writing,  or  if  the  written  examination  is  wholly  inadmissible, 


w^ 


WRIGHT  V.  STATE. 


193 


by  reason  of  irregularity,  parol  evidence  is  admissible  to  prove 
what  he  voluntarily  disclosed.  And  if  it  remains  uncertain 
whether  it  was  reduced  to  writing  by  the  magistrate  or  not,  it 
will  be  presumed  that  he  did  his  duty,  and  oral  evidence  will  be 
rejected.    1  Greenl.  Ev.,  259,  sec,  227. 

Oral  evidence  cannot  be  substituted  for  any  instrument  in 
writing  (which  is  not  merely  the  memorandum  of  some  other 
fact),  the  existence  of  which  instrument  is  disputed,  and  its  pro- 
duction material  to  the  issue  between  the  parties,  or  to  the  credit 
of  the  witnesses.  One  advantage  derived  from  the  application 
of  this  rule  is,  that  the  court  acrpiires  a  knowledge  of  the  whole 
contents  of  the  instrument,  which  may  have  an  effect  very  dif- 
ferent from  a  statement  of  a  part.  "  I  have  always,"  says  Lord 
Tenterden,  in  the  case  of  Vincent  v.  Cole,  M.  &  M.,  2oS,  "  acted 
most  strictly  on  the  rule  that,  whatever  is  in  writing  shall  be 
proved  by  the  writing  itself.  My  experience  has  taught  me  the 
extreme  danger  of  relying  on  the  recollection  of  witnesses,  how- 
ever honest,  as  to  the  contents  of  written  instruments.  They 
may  be  so  easily  mistaken,  that  I  think  the  purposes  of  justice 
require  the  strict  enforcement  of  the  rules." 

This  rule,  however,  does  not  apply  where  the  instrument  in 
question  is  shown  to  be  destroyed  or  lost,  or  where  the  party 
wlio  relies  upon  it  is  otherwii^e  incapacitated  from  producing  it. 

In  the  case  under  consideration,  tlie  reconl  shows  that  the  vol- 
untary statement  of  the  accused  was  taken  in  writing,  and  that 
heing  the  primary  and  best  evidence  of  what  that  statement  was, 
should  liave  been  produced,  and  the  oral  evid'.uce  of  the  witness 
as  to  what  the  prisoner  stated  on  that  examination,  being  sec- 
ondary and  inferior  evidence,  ought  not  to  have  been  received 
on  trial  of  the  prisoner.     l*eter  v.  State,  4  S.  &  M,,  31. 

In  the  admission  of  this  parol  evidence  on  the  trial  of  the  case 
below,  the  court  erred. 

For  this  reason,  the  judgment  will  be  reversed,  the  case  re- 
manded, and  a  new  trial  awarded. 
Vol.  I. -13 


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lOi  AMERICAN  CRIMINAL  RErORTS. 

MiDDLKTON   VS.    SxATE. 
(52Ga.,  527.) 
Evidence:    Corroboration  of  accomplice. 

On  a  trial  for  felony,  a  conviction  cannot  be  had  on  the  testimony  of  an  accom- 
plice, unless  such  testimony  is  con-oboi-ated,  and  the  corrolwration  must  bo 
a«  to  some  fact  or  cu-ciunstance  tendinj?  to  connect  the  respondent  with  the 
crime.  It  is  not  sufficient  that  the  evidence  of  the  accomplice  is  corrob- 
orat<;d  by  facts  which  tend  to  show  the  commission  of  the  crime,  and  tliat 
the  accomplice  was  concerned  in  it. 

Criminaj.  Law.  Before  Judge  Schley,  Chatham  Superior 
Court,  November  Special  Term,  1873. 

Jack  Middleton  and  William  Seabrook  were  placed  on  trial  for 
the  murder  of  John  Houston.  The  evidence  disclosed  the  fol- 
lowing facts:  The  l)ody  of  deceased  was  found  in  the  Savannali 
river,  with  the  appearance  of  having  been  in  the  water  several 
days.  There  was  a  wound  upon  the  head  which  was  sufficient  to 
produce  death.  It  looked  as  if  made  by  a  crow-bar,  or  some 
other  such  instrument.  The  deceased  was  em])]oyed  as  a  watch- 
man on  a  lighter  which  lav  off  Fort  Jackson.  This  boat  con- 
tained  wrecking  material.  Some  of  this  was  subsequently  found 
in  Dennis  O'Connell's  junk  shop,  in  the  city  of  Savaimah.  It 
was  purchased  by  O'Connell  from  Scott  Tliurman  and  Zeke 
Jackson.     The  former  gave  his  name  as  Scott  Williams. 

Here  the  state  introduced  Scott  II.  aUas  Tliomas  II.  Thurman, 
who  had  l)een  indicted  with  the  defendants  for  the  same  oflense, 
a  nolle  jn'Oftequi  having  been  first  entered  as  to  him.  Tiie  wit- 
ness testified  is  follows:  On  the  26th  of  September,  1872,  Jack 
Middleton  proposed  that  I  ride  with  him  in  his  boat;  I  con- 
sented. He,  William  Seabrook,  Zeke  Jackson  and  myself  met  at 
Mrs.  McCfuirc's  on  Farm  street;  Middleton  proposed  that  we  all 
go  on  a  riding  expedition;  we  went,  and  found  abreast  Fort 
Jackson  two  large  lighters  or  barges.  We  heard  some  one  talk- 
ing to  Houston;  we  made  fast  to  the  pillars  of  the-Fort;  after  a 
while  I  proposed  a  return;  I  went  to  sleep,  and  was  awoke  about 
half  ])a8t  eleven  at  night  by  a  steamer;  I  wanted  to  come  back, 
but  Middleton  took  me  over  to  the  lighter;  after  getting  up, 
Houston  said  he  did  not  like  so  many  men  on  board  that  time 
of  night;  Middleton  asked  him  about  selling  the  iron;  Houston 
refused  to  sell  —  went  into  his  ciibin  and  got  an  old  sword  ami 


MIDDLETON  v.  STATE. 


195 


pistol;  Micldleton  said,  while  Houston  was  gone,  "  shove  him 
overboard  and  let  him  swim  to  shore;  "  I  said,  W2  had  better  tie 
him,  if  we  do  anything;  it  won't  do  to  harm  him.  Middleton 
said,  "you  are  fixing  for  him  to  halloo,  now;  "  Seabrook  said, 
"that  aint  worth  a  d — n."  Jackson  knocked  Houston  down  as 
he  was  passing,  with  a  crow-bar;  witness  tried  to  keep  Jackson 
from  throwing  Ilonston  overboard;  Seabrook  seemed  also  to  be 
trying  to  stop  it.  Houston  rose  after  being  thrown  in  by  Jack- 
son, and  swam  to  the  boat;  Jackson  and  Middleton  loosened  his 
hold  and  drowned  him.  Then  Middleton  and  Jackson  took  the 
iron  and  passed  it  to  Seabrook,  who  stored  it  away.  Middleton 
cursed  and  abused  me  becanse  I  would  not  help;  from  fear  I 
kept  silent;  we  came  up  and  hi?ided  at  the  canal  dock;  Middle- 
ton  ordered  all  hands  to  meet  there  at  five  o'clock  that  moraine: ; 
at  eight  I  went  down  to  the  blutt",  and  saw  them  unloading  a 
wagon;  was  present  when  the  iron  was  sold;  Mr,  O'Connell  paid 
Zekc  Jackson  $18.10;  Jackson  then  divided  the  money  with  the 
party;  he  kept  80.00,  Middleton  took  $5.00,  Seabrook  $3.50,  and 
I  was  given  $3.(50.  Seabrook  fastened  the  boat;  Middleton  said 
he  wanted  no  cowards;  that  if  he  could  not  buy  the  iron,  he'd 
liave  it  anyhow.  Went  up  the  country  to  Effingham  to  work; 
after  the  arrest  of  Jackson  and  Middleton,  I  went  to  South  Caro- 
lina; proposed  to  Seabrook  to  come  to  Savannah;  he  swore  ho 
would  not.  !Mr.  Morgan  and  Mr.  Strobhar  arrested  me;  told 
Mr.  ^lorgau  all  about  it  when  arrested,  without  any  inducement 
offered.  Seabrook  broke  and  ran,  but  stopped  and  came  back; 
he  was  with  me  at  the  time  of  the  arrest.  Xo  bargain  was  be- 
tween us,  so  far  as  I  kntnv,  when  we  went  down  the  river;  did 
not  know  Houston;  did  not  know  what  the  party  was  about  un- 
til they  had  remained  at  the  Fort;  went  to  sleep,  and  woke  w.\i  at 
half  past  eleven  at  night;  we  left  the  city  about  five  p.  m.;  don't 
know  what  they  were  talking  about  from  the  time  they  left  the 
city;  did  not  go  to  sleep  until  after  we  got  to  the  Fort;  when  I 
wanted  to  go  back,  Jackson  told  me  I  was  a  child;  it  was  after 
this  that  I  went  to  sleep;  I  did  not  row  back;  up  to  the  time 
that  Jacl:,>^on  struck,  nothing  was  said  al)out  killin<r,  except  what 
Middleton  said  about  throwing  him  overboard.  "When  Seabrook 
had  hold  of  Houston,  I  asked  him  if  he  was  pulling  \\\\\\  away; 
he  said,  no,  by  G — d,  he  was  choking  him  to  keep  him  from 
hallooing;  I  made  no  effort  to  save  Houston;  saw  it  was  no  use; 


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190 


AMERICAN  CRIMINAL  REPORTS. 


we  ^ot  buck  to  the  city  about  half  past  two  in  the  morning; 
made  a  confession  to  the  magistrate;  nothing  was  ofiered  me  to 
confess. 

Benjamin  D.  Moi-gan  said:  He  had  heard  all  that  witness, 
Thurman,  had  said  on  the  stand;  it  agreed  with -what  he  told 
him  in  South  Carolina,  almost  word  for  word ;  Thurman's  con- 
fession was  voluntary;  I  told  him  if  he  would  )nake  the  state- 
ments to  me  before  a  jury,  he  would  be  severely  punished,  but 
that  his  neck  would  be  saved. 

William  Seabrook,  in  his  statement,  denied  any  cciiection 
with  the  murder;  said  it  was  Scott  Thurman  who  tried  to  get 
him  to  come  to  Savannah  from  South  Carolina,  and  swear  against 
Middleton  and  Jackson. 

Jack  Middleton  said  he  knew  nothing  about  the  matter,  except 
what  Thurman  told  him. 

Thurman  (recalled)  said:  Xever  had  an  opportunity  of  talking 
to  Middleton;  did'nt  say  a  reward  was  ofiered  him  with  which 
to  employ  counsel. 

The  jury  found  the  defendants  guilty.  A  motion  was  made 
for  a  new  trial,  because  the  verdict  was  not  authorized  l)y  the 
testimony.     The  motion  was  overruled,  and  defendants  excopteil. 

J.  V.  liyals,  G.  ^Y.  Ouoetis  and  S.  B.  Adams,  for  plaintiUs  in 
error. 

Albert  J2.  Lamar,  Solicitor  General,  by  R.  II.  Claris,  for  the 
state. 


McCay,  J.  There  is  in  this  record  absolutely  no  evidence 
corroborating  the  accomplice,  Tiiurman,  in  the  sense  of  the  law. 
"We  decided^  in  the  case  of  Chihlcn-  v.  State,  52  Ga.,  10(i,  that 
the  corroborating  circumstances  must  be  such  as  connect  the 
prisoners  in  some  way  with  the  crime.  "We  have,  in  that  case. 
fully  given  our  reasons  for  thus  holding,  and  we  will  not  repeat 
them.  The  conviction  in  the  case  at  bar  is  based  solely  on  the 
testimony  of  Thurman.  There  are  circumstances  iroin<r  to  show 
he  is  guilty,  other  than  what  he  states,  but  absolutely  none  that 
the  prisoners  are.  It  is  plain  that  he  and  Jackson  sold  the  iron 
at  the  junk  shop,  and,  identified  as  that  iron  was  next  day  by  the 
owner  of  it,  he  knew,  before  any  coufes^sion  was  nuide,  that  there 
was  evidence  against  him.  It  was  small  virtue  for  him  to  tell  the 
tale  lie  does  after  that.    What  circumstances  there  are  in  the 


PEOrLE  r.  AJIANCUS. 


197 


record,  otlier  than  those  detailed  by  the  accomplice,  rather  ^o  in 
favor  of  the  prisoners.  The  jnnlc  man,  as  well  as  his  employee, 
Monroe,  both  testify  that  neitiier  of  the  prisoners  was  present 
when  the  iron  was  sold,  and  that  Thnrman  and  Jackson  brought 
it  to  the  shop.  It  is  not  at  all  a  reasonable  story  that  the  head 
men  in  the  murder  and  robbery  should  trust  the  plunder  to  the 
witness  and  to  Jackion.  The  fair  inference  from  his  statement, 
too,  is,  that  he  meant  to  testify  that  all  were  present  at  the 
selling. 

We  only  mention  these  circumstances  to  show  that  in  common 
reason,  it  ought  to  take  pretty  strong  circumstances  to  corrob- 
orate such  an  accomplice;  whereas,  in  the  sense  of  the  law,  there 
are  no  circumstances  of  corroboration  —  nothing  that  in  any  way 
connects  the  prisoners  with  the  crime  but  the  statements  of  the 
witness.  That  he  told  the  same  tide  when  arrested  is  not  only 
no  corroboration  by  any  matter  connecting  the  prisoners  with 
the  crime,  but  it  is  illegal  testimony  any  way. 

It  is  strange  to  bolster  up  a  witness  by  proof  that  he  has  told 

the  same  story  before.     We  know  of  no  authority  for  such  a 

practice. 

Judgm^ent  reversed. 


PEorLE  vs.  Ama>xus. 
(50  Ciil.,  233.) 

Evidence     Impeachment  of  witness. 

When  the  chamctor  of  a  witnef  s  has  been  attacked  by  evidence  that  he  has  been 
convicted  of  felony,  it  may  be  sustained  by  evidence  of  his  general  reputa- 
tion for  truth  and  integrity. 


l-t" 


"Wallace,  C.  J.  Sachell,  a  witness  for  the  prosecution,  having 
testified  in  chief,  was  asked  by  the  counsel  for  the  defendant 
whether  he  had  been  convicted  of  felony,  and  answered  that  he 
had.  Sid)sequently,  the  prosecution  called  a  witness  to  prove  that 
the  general  reputation  of  Sachell  for  truth,  honesty  and  integ- 
rity in  the  community  in  which  he  resided  was  good.  This 
proof  was  objected  to  by  the  counsel  for  the  prisoner,  on  the 
grounds  "  that  the  same  was  irrelevant,  incompetent  and  in- 
admissible; that  no  evidence  had  been  oflfered  by  the  prisoner 


:} 


198 


AMERICAN  CRIMINAL  REPORTS. 


tending  to  impeacli  the  said  witness,  Sachell,  for  truth,  lionesty 
and  integrity." 

The  objection  was  overrnled,  and  the  proof  admitted.  An  ex. 
ception  reserved  by  the  prisoner  to  tlie  ruling  in  this  re.-*pect 
presents  the  only  question  to  be  considered  upon  this  a|»peii]. 

The  Code  of  Civil  Procedure  (sec.  2051)  is  as  follows:  '-A 
witness  may  be  impeached  by  the  party  against  whom  he  is 
called,  by  contradictory  evidence,  or  by  evidence  that  his  general 
reputation  for  truth,  honesty  or  integrity  is  bad,  but  not  Ity  evi- 
dence of  particular  wrongful  acts,  except  that  it  may  be  t^lunvii 
by  the  examination  of  the  witness,  or  the  record  of  the  judir- 
ment,  that  he  has  been  convicted  of  a  felony."  It  is  sipiw- 
rent  that  when  the  prisoners  proved  that  Sachell  had  been 
convicted  of  felony,  it  amounted  to  an  impeachment  or  an 
attempted  impeachment  of  the  witness,  under  the  provision 
of  the  code  just  referred  to.  It  was  a  direct  assault  upon  lus 
reputation  for  truth,  honesty  and  integrity,  made  in  the  man- 
ner pointed  out  by  the  code  concerning  the  impeacluneiit  of 
witnesses.  The  prosecution,  therefore,  has  the  right  to  sustain 
its  witness  by  evidence  of  his  good  character,  under  tlie  pro- 
visions of  section  2053  of  the  same  code,  which  provides  in 
substance  that  the  testimony  of  a  witness  may  be  su}>ported  hy 
evidence  of  his  good  character,  where  such  character  lias  liccii 
impeached.  The  argument  for  the  prisoner  made  here,  asserts 
that  "  the  proof  of  the  previous  conviction  of  the  witness  is  in 
no  sense  an  attack  upon  his  general  character  for  truth,  honesty 
and  integrity.  The  conviction  is  simjily  the  consecpience  of  one 
act  of  misconduct,  and  one  particular  act  is  not  sufficient  to 
make  a  general  character.  The  law  recognizes  this,  when  it  does 
not  allow  particular  acts  of  misconduct  on  the  part  of  witnesses 
to  he  shown  by  way  of  impeachment."  (Code  of  Civ.  Proc,  sec. 
2051.)  If  the  proof  of  his  previous  conviction  of  a  felony  did 
not  amount  to  an  attack  upon  the  general  character  of  the  wit- 
ness for  truth,  honest}'  and  integrity,  what,  it  may  be  inquired, 
was  the  purpose  of  its  introduction?  Certainly  it  was  not  to 
exclude  the  witness  on  the  ground  of  incompetency  to  testify  In' 
reason  of  infamy;  for,  under  any  rule,  it  came  too  late  for  that 
purpose,  and  not  in  the  proper  form. 

But  had  it  been  offered  at  the  earliest  opportunity,  and  by  tlie 
production  of  the  record  of  conviction,  it  would  not  have  availed 


KEAN  V.  COMMONWEALTH. 


199 


to  excliulc  the  witness,  because  section  1S79  of  tlie  same  code 
provides,  that  a  previous  conviction  of  felony  shall  not  operate 
to  (lis(pialify  a  witness,  or  preclude  him  from  testifying  in  the 
case.  It  is  apparent  that  tlie  purpose  of  the  proof  that  the  wit- 
ness had  been  convicted  of  a  felony  was  (under  section  1879)  to 
repel  the  presumption  that  he  spoke  the  truth,  "  by  evidence  af- 
fecting,' his  character  for  truth,  honesty  and  integrity,"  which  in 
itself  amounts  to  impeachment,  for  there  is  no  force  in  the  ref- 
erence made  to  the  general  rule  which  forbids  the  impeachment 
of  a  witness  by  evidence  of  particidar  wrongful  acts,  because 
the  Code  of  Civil  Procedure  (sec.  2051)  already  cited,  while  re- 
ferring to  the  general  rule,  expressly  permits  proof  of  a  convic- 
tion of  feiony  as  an  exception  to  that  rule. 

Judgment  affirmed. 


Evidence: 


IvEAN  VS.  Commonwealth. 
(10  Bush,  Ky.,  190.) 

Evidence  of  deceased  witness  on  former  trial  —  Reputation  of  famihj 
of  witness. 


Tlio  cvidonct)  of  a  decoasod  witness,  yivon  on  the  first  trial  of  tiio  rospondent, 
is  admissible  a^'^iinst  him  on  a  second  trial  of  th(i  same  indictment. 

But  tlie  statement  in  a  bill  of  exceptions  of  the  testimony  of  a  deceased  witness, 
j^iven  on  a  former  trial,  is  not  admissible  ajfiiinst  tlie  respondent  on  a  second 
trial  of  the  same  indictment.  The  testimony  of  the  deceased  witness  niust 
be  proved  by  persons  who  were  present  at  the  first  trial.  The  respondent 
hius  a  rijxht  to  be  confronted  with  the  witnesses  aj^ainst  him. 

In  impeachin;,'  the  character  of  a  %\'itness,  evidenct^  of  the  bad  repute  of  his 
fiiiiiily  or  associates  is  iirelevant  and  inadmissible. 

Pryok,  J.  The  appellant,  Henry  Kcan,  was  indicted  in  the 
Jefferson  circuit  court,  charged  with  murdering  one  Avei'y.  lie 
has  been  twice  tried  and  found  guilty  as  charged,  and  the  case  is 
in  this  court  the  second  time  for  revision.  A  witness  by  the 
name  of  iladdox,  who  testified  in  the  Urst  trial,  died  before  the 
second  trial  took  place.  His  evidence  was  embodied  in  a  bill  of 
exceptions  prepared  in  the  court  below,  and  considered  in  this 
court  on  the  first  a])peal.  On  the  second  trial  of  the  case,  the 
one  now  being  considered,  the  statements  purporting  to  have 
been  made  by  Maddox,  as  contained  in  the  bill  of  evidence,  were 


n 


IP 


200 


AMERICAN  CRIMINAL  REPORTS. 


h 


H 


jicnnitte*!,  iipiiiist  tlie  objections  of  the  accused,  to  bo  read  as 
evidence  to  tlie  jury.  It  is  now  urged  ]»y  nppelliint'.s  cfiunsel 
tliat  tlie  iidiiiission  of  tills  testimony  was  in  violatidn  of  the 
twelfth  section  of  tlie  l)ill  of  rif^hts,  wliich  jnvjvl^les  that  in  nil 
criminal  ]»r()S('('Utions,  the  accused  hatli  the  riglit  to  meet  the  wit- 
nesscs  face  tf»  face. 

The  conviction  of  tlie  accused,  in  hoth  instance.^,  was  upon 
circumstantial  testimojiy  alone,  and  the  learned  judi^e  .>ie!ectedt; 
try  tlie  case  in  the  court  lielow,  in  overruling  the  motion  fur  a 
new  trial,  delivered  an  able  though  not  convincing  argument  in 
lavor  (»f  the  comj)etency  of  the  testimony  admitted. 

]\rany  autliorities  are  referred  to  in  belialf  of  the  state,  sustain- 
ing the  right  of  the  commonwealth  to  prove,  by  other  witnesses, 
the  statements  of  a  deceased  witness  made  under  oath,  in  the 
same  case  ami  upon  the  same  issue  lietween  the  same  parties,  hi 
this  case,  Maddox  had  been  once  examined  as  a  witness,  and  the 
■whole  current  of  authority  is,  that  in  such  a  case  tliose  who  were 
present  and  lieard  tlie  statements  of  the  deceased  witness  may 
testify  as  to  what  these  statements  were,  if  the  witnesses  so  called 
are  able  to  give  tlic  substance  of  all  that  was  said  by  the  dead 
■witness,  when  the  latter  testified.  The  requirement  that  the  ac- 
cused shall  have  the  right  to  meet  the  witnesses  face  to  face  is 
thus  complied  witli,  and  no  constitutional  right  violated. 

The  question  in  this  case  is  not  whether  the  statements  of  a 
deceased  witness  on  a  former  trial  were  competent,  for  this  niui-t 
1)0  conceded,  but  has  the  accused  been  deprived  of  a  constitu- 
tional right  in  permitting  a  written  statement  of  what  the  de- 
ceased witness  said  to  go  to  the  jury?  We  think  he  has,  and 
that  a  witness  or  witnesses  should  have  been  called  to  prove  these 
statements  without  reference  to  what  was  eontained  in  the  bill 
of  exceptions.  The  evidence  in  a  bill  of  excej)tions  may  bo  read 
(when  the  witness  is  dead)  in  a  civil  action  where  a  retrial  has 
been  ordered,  but  we  have  found  no  case  where  such  testimony 
lias  been  allowed  in  a  criminal  prosecution.  The  testimony  of 
what  a  deceased  witness  stated  is  competent  in  either  a  civil  ac- 
tion or  criminal  prosecution,  but  the  mode  of  proving  it  is  dif- 
ferent. In  a  civil  case,  either  mode  may  be  adopted,  but  in  a 
criminal  prosecution,  the  statements  must  be  proved  by  living 
witnesses  Avho  speak  from  their  own  recollection  of  what  the  de- 
ceased witness  said.    These  witnesses  are  before  the  accused  and 


KEAN  V.  COMMONWEALTH, 


the  jury.  Tlic  accused  has  tlio  ri^'lit  to  cross-c\iunino,  and  to 
know,  or  ftscertain  from  tlie  witness,  that  he  U  detailing  in  sub- 
shineeall  that  was  spoken  Ity  the  deceased  witness;  without  this, 
lie  is  deprived  of  any  oral  examination,  or  of  even  knowing  wlio 
is  to  testify  against  him.  It  is  the  presence  of  the  witness  that 
tills  provi,  ion  of  the  bill  of  rights  entitles  the  accused  to  have. 
The  coiiii»etency  of  the  testimony  when  offered  is  with  the  court, 
Imt  the  right  of  the  accused  to  see  or  confront  the  witness  is  an 
iiidUpeiisable  requirement. 

In  this  case,  the  evidence  of  the  deceased  witness  was  reduced 
h  writing  by  one  of  the  counsel  for  the  accused,  from  the  notes 
of  the  testimony  taken  by  the  judge  presiding  at  the  first  trial. 
It  is  gliown  by  this  attorney  that  these  notes  were  inaccurate. 
Tiie  judge  is  not  called  on  to  testify,  or  the  right  to  cross-exam- 
ine allowed,  in  order  that  the  accused  may  know  how  much  of 
the  testimony  was  omitted,  or  whether  the  attorney  had  embod- 
ied  in  the  bill  of  evidence  the  substance  of  all  the  witness  stated. 

In  this  case,  others  seem  to  have  been  charged  with  the  com- 
mission of  the  crime  in  connection  with  the  accused.  Ilis  associ- 
ations with  these  parties  as  to  time,  place,  etc.,  as  well  as  many 
other  circumstances,  are  necessary  to  be  shown  by  the  common- 
wealth in  order  to  make  an  unbroken  chain  of  testimony  against 
the  accused.  A  fact  or  circumstance  proven  on  the  first  trial, 
and  then  regarded  as  immaterial  by  the  court  and  counsel,  might 
heconie  of  vast  importance  to  the  accused  on  the  second  trial, 
and  therefore  the  necessity  of  having  the  witness  before  the  jury 
in  order  that  the  accused  may  cross-examine. 

Section  305  of  the  code  jirovides  "  that  in  making  an  exception, 
only  so  much  of  the  evidence  shall  be  given  as  is  necessary  to  ex- 
plain it,  and  no  more."  This  court  has  no  power  to  reverse  a 
judgment  of  conviction  in  a  criminal  case  for  the  reason  that  the 
evidence  does  not  authorize  it.  If  there  is  any  proof  conducing 
to  show  the  prisoner's  gnilt,  the  judgment  jnnst  be  sustained  in 
this  court,  unless  there  has  been  some  error  of  law  to  the  preju- 
dice of  the  accused,  committed  during  the  progress  of  the  trial, 
and  for  which  this  court,  by  the  provisions  of  the  code,  has  the 
power  to  reverse.  The  court  below,  therefore,  in  making  out  a 
bill  of  evidence  in  a  criminal  case,  only  gives  so  much  of  it  as 
will  enable  this  court  to  determine  the  questions  of  law  arising 
on  the  facts,  and  would  necessarily  omit  many  circurastances  or 


202 


AMERICAN  CIUMIKAL  RKl'UUTS. 


facts  that  were  or  iniglit  l»o  of  iiiipurtiincu  to  the  accused  befuro 
a  jury,  and  of  hut  little  conse(|ueiicu  in  this  court. 

The  evidence  in  the  case  was  taken  down  on  tiie  last  trial,  and 
adds  nearly  one  thousand  pa^es  to  the  rec(jrd,  and  it  lui^ht  well 
happen  that  the  suhstanco  of  all  that  was  said  hy  this  witnesij 
was  not  contained  in  the  l)ill  of  evidence.  It  is  u  constant  oc- 
currence for  counsel  to  disa<^ree  as  to  what  a  witness  has  sworn 
to,  both  recollecting  with  etjual  clearness,  and  the  court  deter- 
niinin<^  the  issue  between  them,  more  with  the  view  of  havinj,' 
the  le<^al  (questions  arisin<^,  i)resented  properly  to  this  court  than 
to  <,'et  the  substance  of  all  the  witness  said.  Even  those  who  are 
present  and  favorably  inclined  to  one  party  are  very  apt  to  make 
the  lanf,nia<,'e  used  by  the  witness  coniorm  to  their  own  wit^liot, 
and  hence  the  absolute  necessity  of  givin<^  to  the  accused,  wliure 
his  life  or  liberty  is  involved  in  the  issue,  the  right  of  cru»;- 
examination.  This  right  of  the  accused  to  confront  the  witness 
testifying  against  him  is  declared  in  both  the  fedwal  and  state 
constitutions,  and  doubtless  in  the  constitution  of  every  state  in 
the  union;  a  right  indispensable  to  the  citizen  when  his  lite 
or  liberty  is  involved,  and  the  admission  of  this  silent  witness 
is,  in  our  opinion,  in  plain  violation  of  the  twelfth  section  of  the 
bill  of  rights.  (5  (Jhio,  35.1:;  10  Humph.,  -486;  WahtotiV.  The 
CommorvweaWi ,  10  W.  Mon.,  15.) 

It  is  maintained  by  counsel  for  the  state  thsit  the  evidence,  con- 
ceding it  to  be  incompetent,  did  not  prejudice  the  rights  of  the 
accused.  The  persistency  of  counsel  for  the  state  in  the  conri 
below  in  having  it  before  the  jury,  as  well  as  the  imporlaneo  at- 
tached to  the  question  by  the  judge  ])residing  at  the  trial,  is 
sufHcient  evidence  of  its  importance,  without  analyzing  the  tes- 
timony to  show  it.  It  is  also  insisted  that,  as  the  admission  of 
incompetent  testimony  was  not  made  a  ground  for  a  new  trial  in 
the  court  below,  this  court  has  no  jurisdiction  over  the  question. 
This  question  has  heretofove  been  decided  in  the  case  of  John- 
son V.  The  Commomoealt/i,  9  Busli,  224. 

The  instructions  given  contain,  in  substance,  the  law  of  the 
case.  Instruction  No.  4  is  rather  an  argument  upon  the  effect  of 
a  confession  than  an  instructioi'.  to  the  jury;  as  an  abstract  prop- 
osition of  law  it  cannot  be  ijiicstioned,  but  in  its  application  to 
the  facts  of  a  case,  we  do'.; be  whether  a  iury  should  be  told  that  a 
confession  voluntarily  nuxde  was  anu    g  the  most  efiectual  proofs 


KEAN  V.  COMMONWEALTH. 


203 


in  the  cftsc.  The  confcBsion  Imd  been  i)crinitteil  to  go  to  tlio 
jurv,  luul  they  BhouUl  have  been  left  to  coiisidur  it  in  connection 
with  the  otlior  testimony  in  the  case.  The  caution  given  jnriea 
in  receiving  proof  of  verbal  cctnfessitjn  has  alwuves  been  held 
iiroijer,  by  reason  of  the  lunnane  and  merciful  considorationd  to 
which  tlie  accused  is  always  entitled  when  on  trial  upon  an  issue 
involving  his  liberty  or  life. 

>'((  reversal  woidd  have  been  had,  however,  by  reason  of  this 
ingtructioii,  as  we  are  well  satislied  the  substantial  rights  of  the 
nc'cnsed  were  not  atl'eetcd  by  it.  The  other  objections  made  to 
the  ridings  of  the  court  arc  not  available,  even  if  such  rulings 
were  erroneous,  as  they  are  (piestions  over  which  this  court  lias 
no  revisory  power. 

It  is  proper  to  suggest  that  in  impeaching  the  character  of  a 
witness,  by  showing  that  he  is  not  entitled  to  credit  on  oath, 
proof  that  his  family  or  associates  are  in  bad  repute  is  clearly 
incompetent.  It  is  the  general  character  of  the  witness  assailed 
tlmt  is  in  issue,  and  not  that  of  his  family. 

^\c  hiivc  examined  this  large  record  carefully,  and  refrain  from 
expressing,  as  we  have  no  right  to  do  so,  an  opinion  as  to  the 
gnilt  or  innocence  of  Henry  Kean;  but  whatever  his  condition 
in  life  may  be,  or  the  cliXMimstances  surrounding  him,  he  is  en- 
titled to  a  fair  and  impartial  trial  and  the  maintenance  of  his 
constitutional  rights. 

The  judgment  of  the  court  below  is  reversed,  and  cause  re- 
minded, with  directions  to  award  to  tlie  appellant  a  new  trial, 
and  for  further  proceedings  consistent  with  this  opinion. 


Note. — Tlie  tostimony  of  a  deceased  \vitness,  examined  on  a  former  trial  on  a 
criminiil  cliarjfe,  may  be  proved  on  a  second  trial  for  the  same  otFensc.  Pope  v. 
mate,  22  Ark.,  ;J7'2.  The  prosecution,  on  a  second  trial  for  a  crime,  may  prove 
wluit  a  witno.'^s,  since  deceased,  testified  to  on  a  fomicr  trial.  The  general  rules 
of  evidence  are  the  same  in  both  criminal  and  civil  cases.  The  testimony  of  a 
witness,  since  decesised,  given  on  a  former  trial  in  a  cnminal  case,  may  be  proved 
on  a  subsequent  triid,  by  permitting  a  pei*son  who  kept  notes  of  such  testimony, 
and  who  swears  they  contain  the  substance  of  the  testimony,  to  read  his  notes  to 
tliL'juiy.    Pcoftk  r.  Mnrphi/,  45Cal.,  1S7. 

Wliat  a  deceased  witness  testified  on  a  former  trial  in  a  criminal  case  may  be 
proved  by  a  witness  who  was  present  and  heard  the  deceased  witness  testify.  The 
witness  giving  evidence  of  what  the  deceased  witness  testified  to  on  a  former  trial 
must,  however,  give  his  evidence  from  his  own  recollection.  If  the  witness  who 
heard  the  deceased  witness  testify  on  a  former  trial  be  the  attorney  of  the  accused 
in  Ijoth  trials,  the  state,  nevertheless,  has  the  right  to  have  lilo  testimony  on  thia 


20-4 


AMERICAN  CRIMINAL  REPORTS. 


i 

point,  his  recollection  of  all  the  importiuit  facts  testified  to  by  tlie  deceased  mt- 
ness  ill  favor  ot  his  client  being  presumed.    State  v.  Cook,  '2;J  La.  An.,  347. 

Testimony  proving  the  statements  made  by  a  deceased  witness  on  oath,  at  a 
former  trial,  between  the  same  parties,  being  one  of  the  established  excepi'wm  to 
the  rule  that  hcarsaij  is  incompetent  as  evidence,  tlie  aibnission  of  a  witness  to 
give  eudenee  of  this  kind,  ui  a  cjimiual  ca.«e,  does  not  contravene  tlie  constitution. 

It  is  not  essential  to  the  competency  of  such  endenco,  that  it  bo  given  in  the 
exact  words  used  by  tlie  deceased  person;  but  while  the  witness  is  allowed  to 
give  tlio  sabstance  of  the  stateinents  of  tlie  decea-sed  peKoii  in  tlie  foniier  trial,  ho 
is  not  allowed  the  latitude  of  giving  their  mere  ej/'ecf. 

It  is  essential  to  the  comjietency  of  the  witness  called  to  give  tlii.s  land  of  evi- 
dence, first,  that  he  heni-d  the  deceased  person  testify  on  a  fonaor  trial;  ami, 
second,  that  he  has  such  accurate  recollection  of  the  matter  stated,  that  he  will, 
on  Ills  oath,  assume  or  undertake  to  narrate,  in  substance,  the  matter  swoni  to  by 
the  deceased  person,  m  all  its  material  paiis,  or  that  piui  therL-of  wliicli  he  may 
be  called  on  to  prove. 

It  is  essential  to  the  competene;i  of  the  evidenee,  fii-st,  that  the  matt<:'r  stated  at 
the  former  tri;d  by  the  witness,  since  di}ceased,  should  h.ave  been  gi'.en  un  oath; 
second,  between  the  same  parties,  and  touching  the  same  subject  matter;  where 
opportunity  for  cross-exaiuuiation  wjis  given  the  person  a^jainst  whom  it  is  now 
oifered;  and,  third,  that  the  nuittcr  sworn  to  by  tfie  person  since  deceased  betilakd 
in  all  its  material  parts,  and  in  the  order  in  which  it  was  giren,  so  far  as  mccs' 
sari/  to  a  correct  understanding  of  it.    Summons  r.  State,  5  Ohio  St.,  !3'2-"). 

On  the  second  trial  of  the  accused  upon  an  inilictnient  tor  assauJ '  with  intent 
to  murder  one  H.,  the  state  was  permitted  to  show  that  H.  had  died  since  the 
previous  final,  and  then  to  prove  by  a  witness  the  testimony  given  by  H.  as  a 
state's  witness  ujion  the  previous  trial.  Held,  that  although  tliere  are  unuiy 
authorities  agauist  the  competency  of  such  evidence  in  crimuial  caaes,  yet  tl.e 
great  preponderance  of  jjuUcial  decisions,  in  botli  England  and  America,  now 
concui-s  with  the  better  reasoning  in  holiling  that  such  evidence  is  competent  iuul 
admissible  as  well  in  criminal  as  in  civil  cases.  And  held  further,  that  it  is  not 
necessary  to  prove  the  precise  language  used  by  the  deceased  witness  in  his  testi- 
mony; the  sub.stiuice  of  his  entire  testimony  is  sufficient,  ajid  may  be  stated  in 
diiferent  Luiguage  than  tliat  eniploj'ed  by  him.     Greenwood  v.  State,  '3o  Tex.,  587. 

Proof  of  what  a  deceiused  witness  testified  to  on  a  iirel'miiiaiy  examination  bo- 
fore  a  justice  of  tlie  peace,  touching  the  same  chai'ge  for  which  the  accused  stiinds 
infhcted,  is  admissible  agiiinst  him,  although  the  examination  was  not  reduaJ 
to  writuig.  In  such  a  case,  it  is  not  nece«siU'y  to  prove  tlie  Ituigiiage  u.si>d  by  the 
witness  ui  givuig  his  testimony;  its  substance  is  all  that  is  n.-qiui'tvl.  But  proof 
of  what  a  deceased  witness  testified  to  on  a  former  trial  is  not  admissible,  unless 
the  pouit  in  issue  is  the  same.  Davi«  v.  State,  17  -iVla.,  ■>A.  The  rule  in  regard 
to  the  proof  of  the  testimony  given  in  a  former  trial,  by  a  witness  who  has  since 
died,  is  the  same  in  civil  and  criminiil  casi>s.  So,  ujwn  the  trial  of  a  party  on  a 
charge  of  manslaughter,  it  was  held  competent  for  tlie  pros(icution  to  prove  by 
pei^sons  who  heard  and  remembered  it,  the  testimony  of  a  witness  ui  the  pre- 
hminai-y  examination  before  a  justice  ot  the  peace,  such  witness  having  thed  be- 
fore the  final  trial.    Barnett  v.  People,  54  III.,  325. 

A  person  Wiis  arrested  and  taken  before  the  proper  officer,  charged  with  rob- 
bing the  mail.     At  the  preliminary  examination,  a  witness,  smce  deceased. 


KEAN  V.  COMMONWEALTH. 


205 


testified  m  relation  to  the  otTonse.  Tlie  accused  was  present,  aaid  liis  counsel 
crass-cxaniiiu'd  tlio  witness.  Witnesses  were  permitted  to  prove,  on  a  trial  before 
a  jury,  under  an  indictment  found  for  the  same  otfense,  what  tlie  deceased  wit- 
ness testified  at  the  preluuinary  examination.  The  rules  of  evidence  in  civil  and 
criminal  ciises,  in  tliis  particular,  are  the  same.  It  is  sufficient,  in  such  case,  to 
prove  substantially  all  that  the  deceased  witness  testified  upon  the  particular  sub- 
ject of  inquiiy.     United  States  v.  Mnromb,  5  McLean,  C.  0.  (U.  S.),  2S6. 

A  deposition  of  a  witness,  taken  before  the  preliminaiy  examination  before 
a  committiiij,'  magistrate  in  the  presence  of  the  accused,  may  be  received  in  ev- 
idence on  the  trial  upon  proof  of  the  death  of  such  witness  (Ryland,  J.,  dissent- 
ing), llie  provision  of  the  constitution  of  tliis  fetate  declaring  "that  in  all  crim- 
inal prosecutions  the  accused  has  tlie  riylit  to  meet  the  witnesses  agaiaist  him 
face  to  face  "  does  not  render  such  evidence  illegal.  (Uvland,  J.,  dissenting.) 
State  V.  MvO'lShnis,  24  Mo.,  402. 

Kusliing,  who  was  examined  as  a  witness  against  Kendrick,  before  a  conmiit- 
ting  court,  died  before  the  trial  of  Kendrick  in  the  cii'cuit  comt.  The  attorney 
for  the  state  proposed  to  prove  on  the  trial  what  lluslimg  had  stated  before  the 
committing  court.  This  evidence  was  held  not  in  violation  of  the  constitutional 
right  of  the  defendant  to  meet  witnesses  against  him,  face  to  face,  for  Kendrick 
liad  met  Kusliing  face  to  face  before  the  conmiitting  court,  and  had  the  right  to 
cross-examine  liim,  and  had  in  the  ckcuit  court  the  right  to  cross-examine  those 
who  proved  what  Hushing  hiul  stated.  Where  it  is  proi)0.sed  to  introduce  the 
testimony  of  a  deceased  witness  given  on  a  former  trial  between  the  same  parties, 
it  is  not  necessary  to  prove  the  exact  words  of  such  deceased  witness.  It  is  suf- 
ficient if  the  substance  of  all  he  said  on  the  examination  and  cross-examination 
ill  relation  to  the  subject  matter  in  controversy  bo  proved.  Kemh'kk  v.  State, 
10  Humph.,  479. 

On  the  examination  before  a  justice  of  the  peace  of  a  prisoner  charged  with 
murder,  tlie  tvstimony  of  a  witness  for  the  commonwealth  wa.s  taken  in  writing. 
Tiie  witness  liaviiig  died,  the  notes  of  his  testimony  were  admissible  on  the  trial. 
Broirnv.Conimniiirealth,  7.'}  Peim.  St.,  o21. 

The  12th article  of  the  Declai-ation  of  Rights,  whicii  provides,  tiiat  in  criminal 
cases,  the  accused  shall  have  the  right  "  to  meet  the  witnesses  against  him,  face 
to  face,"  is  not  violated  by  the  admission  of  testimony  in  a  crimuial  triiil  before  a 
jmy,  to  provi?  what  a  di'ci'a^ied  witness  testified  at  the  preliminaiy  examination 
of  the  accused  before  a  justice  of  the  peace. 

It  is  not  sufficient,  in  such  case,  to  prove  the  substance  and  effect  merely  of  tlie 
testimony  of  tlic  deceased  witness,  although  the  memory  of  the  witness  ottered  to 
inove  such  testimony,  be  aided  by  notes  taken  at  the  preliminary  examination; 
hut  the  whole  of  the  testimony  of  the  deceased  witness  upon  the  point  in  question, 
and  the  precise  words  used  l)y  him,  must  be  proved.  Commnnwealth  r.  likhardi, 
18  Pick.,  4;!4.  If  a  hearing  be  had  before  a  magistrate,  ui)on  the  complaint  of  a 
town  grand  juror  charging  a  person  with  tlie  commission  of  a  crime,  and  the  re- 
spondent be,  by  the  magistrate,  bound  over  for  trial  by  the  county  court,  and  au 
indictment  be  found  against  him,  and  before  a  trial  is  had  upon  the  indictment, 
a  witness,  who  testified  before  the  magistrate,  dies,  evidence  may  be  received  on 
trial  upon  the  imlictment,  to  prove  what  that  witness  testified  before  the  magis- 
trate. And  it  is  not  necessaj-y,  on  such  trial,  to  prove  the  exact  language  used  by 
the  \sitness  m  giving  his  testimony  before  the  magistrate;  it  is  sufficient,  if  the 


I^Mi' 


206 


AMERICAN  CRIMINAL  REPORTS. 


substance  of  his  testimony,  as  tlicrc  given,  be  detaileil.  Sinfe  r.  Jloolrt;  17  Vt,, 
658.  But  the  nile  seems  to  be  otherwise  in  Tennessee  and  Virginia,  where  it  ij 
hekl  that  the  evidence  of  a  deceased  witness  cannot  be  given  by  tiie  prosecution 
in  a  criminal  case.  See  State  r.  Atkins,  1  Overt.  (Tenn.),  2'2y,  and  Finn  v.  Com., 
5  Rand.  (Va.),  701. 


Shivers  vs.  State. 

(5:5  Ga.,  149.) 

Evidence;    Practice  —  Continuance. 

Under  a  statute  which  provides  that  the  certificate  of  any  pubhc  officer  of  tiio 
state  to  any  record,  document,  paper  on  file,  or  otiier  matt*'r  or  thing  in  his 
office,  shall  be  admissible  in  evidence  in  any  court  of  the  state:  Held,  that 
such  certificate  is  admissible  against  a  defendant  in  a  criminal  case,  and 
tliat  his  constitutional  right  to  be  confronted  with  the  witnesses  agaiii.st  iiini 
is  not  thereby  violated. 

The  defendant  applied  for  a  continuance  when  the  case  was  called  for  trial,  on 
the  gi'ound  that  the  indictment  wa.s  only  found  two  days  previously,  and 
his  counsel  had  been  so  much  engaged  that  \w  had  not  been  able  to  prepare 
the  case  for  trial.  It  l)eing  made  to  ajipear  by  the  certificate  of  the  trial 
judge,  that  the  defendant  had  lieen  an-ested  the  term  before,  and  was  tlion 
fully  informed  of  the  charge  against  him,  and  was  ii.^ked  if  hi'  di'^iircd 
counsel,  and  wanted  a  trial,  to  both  of  which  qut^tions  he  answered  no; 
Held,  there  was  no  error  in  oveiTuling  the  motion  for  a  continuance. 

Shivers  was  indicted  for  the  offense  of  cmbezzlinij;  8ll,(W, 
collected  by  him  as  tax  collector  for  the  county  of  Hancock,  dur- 
the  year  1S71.     He  pleaded  not  guilty. 

When  the  case  was  called  for  trial,  ho  moved  for  a  continu- 
ance on  the  ground  that  the  indictment  had  heen  found  oTdy  two 
days  previous  thereto,  am!  his  counsel  had  hoen  constantly  en- 
gaged in  the  business  of  the  court  to  the  exclusion  of  any  ojtportii- 
nity  of  making  preparation  in  the  case,  or  even  of  consulting  with 
his  client.     The  motion  was  overruled  and  defendant  excepteil. 

It  was  shown  by  the  prosecution  that  tlic  defendant  was  the 
tax  collector  of  Hancock  county;  that  the  state  tax  assessed  for 
the  year  1871,  on  the  taxable  i)roperty  of  said  county,  was  !?11,- 
000;  that  the  defendant  had  collected  various  amounts  from 
divers  tax  payers  during  that  year;  that  when  the  solicitor  gen- 
eral, as  agent  for  the  com]>troller  general  and  treasurer  of  the 
state,  demanded  the  811,000  from  him,  he  replied  that  he  liiul 
collected  .  \d  used  the  money,  and  did  not  then  liave  a  dollar. 
but  that  "  if  they  would  give  him  a  chance,  he  would  make  it  and 
pay  it." 


SHIVERS  f.  STATE.  207 

Tlie  solicitor  general  tendered  in  evidence  the  following  papers: 

"Hancock  County  — S.  C.  Siuvehs,  Tux  Collector. 

"  To  general  and  poll  tax,  1871 ?12,070  77 

"  Wi.    January  8tli,  by  f,n'n(n'al  tax  paid  tn^vsurer 284  05 

"  1873.    .Tanuaiy  8th,  by  poll  tax  paid  trcasuror 513  00 

"OiaaCK  OF  THK  CoMl'TKOLLKR  GkNKKAL 

"  Of  tiik  State  of  Gkorgia. 
"  Atlanta,  Ga.,  January  2^,  iSj^. 

"I,  W.  L.  Goldsmith,  comptroller  general  of  the  state  of 
Georgia,  do  hereby  certify  that  the  above  and  foregoing  account 
of  S.  C.  Shivers,  tax  collector  of  the  county  of  Hancock,  in  said 
Etate,  for  the  year  1871,  is  a  full,  true  and  complete  exemplifica- 
tion taken  from  the  books  on  file  in  this  office,  and  there  re- 
quired to  be  kejit  by  law,  in  which  the  accounts  with  said  state, 
of  all  the  tax  collectors  thereof,  are  kept  according  to  law;  that 
said  account  is  truly  and  correctly  taken  and  copied  from  said 
books;  that  the  same  is  a  full,  true  and  complete  exemplification 
of  all  the  accounts  of  said  S.  C.  Shivers  with  said  state,  as  such 
tax  collector,  from  the  year  1871  up  to  the  ])rescnt  date,  as 
copied  and  taken  from  said  books;  that  the  balance  o"  §11,- 
270.72  due  thereon  is  unpaid,  and  that  the  amounts  credited 
thereon  January  8th,  1873,  were  paid  by  L.  L.  Lamar,  tax  col- 
lector of  said  county. 

"Given  under  my  hand,  official  signature  and  seal  of  office, 
24tli  day  of  January,  1S7-1. 

(Signed)         "AV".  L.  (toi.dsmith,  CoinptroUor  Gcncnil.'''' 

^Mso  certificate  from  the  treasurer,  in  similar  form  to  tran- 
script frcim  his  books,  covering  all  payments  into  the  treasury 
dnring  the  month  of  December,  1S71,  from  whatever  source, 
among  which  none  appeared  as  having  been  nuule  by  the  de- 
fendant. 

Tills  evidence  was  objected  to,  but  was  admitted  by  the  court, 
and  defendant  excepted. 

The  jury  found  the  defeiulant  guilty.  A  motion  was  made 
for  a  new  trial  upon  each  of  the  above  grounds  of  exception. 
The  motion  was  overruled,  and  defendant  excepted. 

As  to  the  refusal  of  the  continuance,  the  presiding  judge  cer- 
tified as  follows: 

""When  this  case  was  called,  it  was  postponed  for  a  day  to 
give  defendant's  counsel  time.     The  defendant  was  arrested  tho 


,  k 


208 


AMERICAN  CRIMINAL  REPORTS. 


r     ', 


term  before  and  brought  before  me  under  a  warrant.  "When 
asked  by  tlie  court  if  lie  wanted  counsel,  he  said  '  no.'  If  lie 
wanted  a  trial,  he  said  '  no.'  lie  was  fully  informed  then  of  the 
nature  of  the  accusation,  as  much  as  he  was  after  the  bill  was 
found." 

Gcorffe  F.  Pierce,  M.  W.  Lewis  and  F.  L.  Little,  for  plaintiff 
in  error. 

Samuel  LMmpJcin,  Solicitor  General,  for  the  state. 

Warnkr,  C.  J".  The  defendant  was  indicted  for  the  otTcnse  o£ 
embezzlement,  and  on  the  trial  thereof  was  found  guilty  by  the 
jury.  A  motion  was  made  for  a  new  trial,  on  the  several 
grounds  alleged  therein,  which  was  overruled  by  the  court,  and 
the  defen<lant  excepted.  T'"^  grounds  of  error  only  have  been 
insisted  on  here:  First,  the  refusal  of  the  court  to  grant  the 
defendant  a  continuance  on  the  showing  made  therefor;  and 
second,  in  admitting  in  evidence  the  certified  copies  of  the  rec- 
ord books  of  tlie  state  treasurer  and  comptroller  genei-al,  the  de- 
fendant insisting  that  he  was  entitled  to  be  confronted  with  the 
witnesses  testifj'ing  against  him,  and  that,  in  allowing  the  certi- 
fied copies  of  the  records  kept  by  those  ofHcers  to  be  read  in  cvi- 
dencc,  the  defendant  was  deprived  of  a  constitutional  right.  By 
the  law  of  this  state,  the  certificate  of  any  public  ofHcer  thereof, 
of  any  record,  document,  naper  on  file,  or  oth^^r  matter  or  thing 
in  their  respective  ofHces,  or  appertaining  thereto,  is  admissible 
in  evidence  in  any  court  of  this  state.     Code,  sec.  3810. 

The  mistake  of  the  plaintiflf  in  error  in  this  case  consists  in 
the  assumption  that  the  certificates  of  the  treasurer  and  comp- 
troller general  as  to  what  appears  in  the  records  oi  their  respec- 
tive ofHces  is  the  personal  testimony  of  those  officers;  whereas, 
they  only  certify  what  appears  on  the  records  of  their  office. 
They  were  not  personally  examined  as  witnesses  against  the  de- 
fendant. If  they  had  been  oflered  as  witnes.ses  a^rainst  the  de- 
fendant  at  the  trial,  they  would  necessarily  have  been  recpiired 
to  testify  in  open  court;  their  testimony  could  not  have  Iieen 
taken  by  interrogatories.  From  the  explanatory  note  of  the  pre- 
siding judge,  and  in  view  of  the  facts  contained  in  the  showing 
for  a  continuance,  the  defendant  had  reasonable  time  and  oppor- 
tunity to  have  prepared  his  defense. 

As  a  general  rule,  the  court  before  which  the  case  is  tried  will 


STATE  f.  STANLEY. 


209 


be  allowed  a  liberal  discretion  as  to  the  continuance  of  cases,  and 
this  court  will  not  interfere  ■with  it,  unless  it  has  been  mani- 
festly abused,  and  injustice  done. 
Let  the  judgment  of  the  court  below  be  affirmed. 


"^ 

m 

mm 

'■  ^i 

1 '  '  !•' 

!    " 

. 

'     5 

i 

ill 

1 

State  vs.  Stanley. 

(64  Me.,  157 ) 

False  Pjietexses. 


On  an  indictment  for  false  pretonses,  in  the  sale  of  a  lioi*se,  a  pretense  that  the 
horse  was  sound,  when  the  respondent  knew  that  he  was  not,  is  a  false  pre- 
tense ^nthin  tlie  st<itute. 

ArPLKTOX,  C.  J.  This  is  an  indictment  for  cheating  one  Sul- 
livan by  means  of  certain  false  pretenses. 

The  allegations  in  the  indictment  are,  that  the  defendant,  in 
an  exchange  of  horses  with  one  Sullivan,  knowingly,  designedly 
and  falsely  jirotended  that  his  (the  respondent's)  horse  was  a 
sonnd  horse,  when,  in  fact,  it  was  not;  that  said  Sullivan  be- 
lieved said  false  pretense,  and  was  thereby  deceived,  and  induced 
to  exchange  and  deliver  his  horse  to  the  res])ondent,  and  was 
thus  defrauded. 

The  question  is,  vhether  or  not  the  indictment  sets  forth  a 
false  pretense  within  Ilev.  Stat.,  ch.  12G,  §1. 

The  assertion  of  the  soundess  of  his  horse  by  the  defendant  is 
tlie  assertion  of  a  material  fact.  It  is  false.  It  was  made  to  de- 
ceive and  defraud.  It  accomplished  its  purpose.  This  much  the 
demurrer  admits.  It  is  not  readily  perceived  why  this  falsehood. 
is  not  within  the  spirit,  as  well  as  the  letter,  of  the  statute. 

Ill  State  V.  Mills,  17,  Me.,  211,  the  owner  of  a  horse  repre- 
sented to  another  that  his  horse,  which  he  oft'ered  in  exchange 
for  the  property  of  the  other,  was  a  horse  known  as  "  the  Char- 
ley," when  he  knew  that  it  was  not  the  horse  called  by  that 
name,  and  by  such  representation  obtained  the  property  of  the 
other  person  in  exchange,  it  was  held  that  the  indictment  was 
sustained,  although  the  horse  said  to  be  "the  Charley-'  was 
ef[nal  in  value  to  the  property  received  in  exchange,  and  as  good 
as  "the  Charley."  So  the  statement  that  the  property  is  unin- 
VoL.  I.— 14 


■ 

■:  1 

^ 

, 

210 


AMERICAN  CRIMINAL  REPORTS. 


cumbered,  when  the  fact  is  otherwise,  will  sustain  an  indictment 
for  cheating  by  false  pretenses,  notwithstanding  there  may  have 
been  a  Avarranty,  if  the  false  pretense,  and  not  the  warranty,  was 
the  inducement  which  operated  upon  the  party  to  make  the  ex- 
change. /State  v.  Dorr,  33  Me.,  498.  In  T/te  Peoj^Ie  v.  Crissie, 
4  Dcnio,  525,  an  indictment  that  the  defendants  falsely  prctciuled 
to  a  third  person  that  a  drove  of  sheep,  which  they  offered  to  sell 
him,  were  free  of  disease  and  foot-ail,  and  that  a  certain  lame- 
ness, apparent  in  some  of  them,  was  owing  to  an  accidental  in- 
jury, by  means  of  which  they  obtained  a  certain  sum  of  money 
on  the  sale  of  said  sheep  to  such  person,  with  proper  (piali- 
fying  words,  and  an  averment  negativing  the  facts  represented, 
was  held  good  under  the  statute  against  cheating  by  fsilse  pre- 
tenses. In  Hex.  V.  Jachoii,  3  Camp.,  370,  it  was  held  to  be  an 
offense  to  obtain  goods  by  giving  a  check  on  a  banker  with  wiiuiii 
the  drawer  kept  no  cash.  So  the  representation  that  a  bank 
check  was  a  good  and  genuine  check,  and  would  be  paid  on  pre- 
sentation, when  the  drawer  had  no  funds  in  the  bank  on  which 
it  is  drawn^  is  a  false  pretense.  Smith  v.  People,  47  N.  Y.,  303. 
So  false  representations  as  to  quality  may  constitute  a  false  pre- 
tense, for  which  the  person  so  fidsely  representing  may  be  in- 
dicted. Peg.  V.  Sherioood,  40  Eng.  Com.  Law,  585.  So  by  giving 
false  samples.  Peg.  v.  Ahhott,  Den.  C.  C  ,  370.  In  Peg.  v.Iun- 
rick,  48  Eug.  Com.  Law,  49,  the  false  i)retcnse  was  that  the  horses 
were  the  property  of  a  private  person,  and  not  of  a  horse  dealer 
and  that  they  were  quiet  and  tractable,  and  Lord  Dknmax,  C.  J., 
says;  "The  pretenses  were  false,  and  the  money  was  obtained 
by  their  means,"  and  the  indictment  was  sustained.  In  that 
case  the  purchaser  wanted  a  (piiet  and  tractable  horse;  in  the 
one  at  bar  a  sound  one  was  wanted.  In  that  case,  as  in  the 
one  at  bar,  the  false  representation  was  effective  to  defraud. 

A  false  pi-etensc  may  relate  to  quality,  quantity,  nature  or 
other  incident  of  the  article  offered  for  sale,  whereby  the  pur- 
chaser, relying  on  such  false  representation,  is  defrauded.  A%. 
V.  Ahhott,  01  Eng.  Com.  Law,  029.  A  mere  false  affirmation  or 
expression  of  an  opinion  will  not  render  one  liable.  It  must  he 
the  false  assertion  of  a  material  fact,  with  knowledge  of  its 
falsity.  Piftluqy  v.  Small,  03  Me.,  12;  Pex  v.  Peed,  32  Eng.  Com. 
Law,  904.  No  harm  can  happen  to  any  one  from  abstinence  in 
the  making  of  false  representations.     When  made,  and  material 


KELLER  V.  STATE. 


tt 


and  effective  for  cleee]>tion,  no  sufficient  reason  is  perceived  why 

the  "■nilty  party  slioukl  escape  punishment. 

Exceptions  overruled. 

Indictment  adjudged  good. 

DicKEKSox,  Daxfoutu,  ViRGix,  Petkrs  and  Libbev,  JJ.,  con- 
curred. 


Kellkb  vs.  State. 
(51  Ind.,  in.) 
False  Pretenses:    ImUdmcnt — Crimiiml pleading — Contradktonj  allegations. 

An  indictment  for  false  pretenses  in  selling  .a  mortgage  which  alleges  that  the 
prisoner  pretended  tliat  he  had  recently  sold  the  real  estate  covered  by  the 
mortgage,  and  that  said  real  estate  was  situated  in  I.,  but  which  does  not 
pive  the  name  of  the  purchaser  or  describe  the  property,  \nthout  alleging 
that  such  name  and  description  are  unknown,  is  bad  on  a  motion  to  quash  as 
lieing  too  uncertain  and  indefinite. 

In  an  indictment  for  false  pretenses  in  the  sale  of  a  $-*)00  mortgiXge,  where  the 
pretense  was  that  the  real  estate  covered  by  the  mortgage  was  worth  $3,500, 
an  allegation  that  the  real  estate  was  not  worth  $3,500  is  insurticimit.  Tlie 
mdictment  should  show  that  the  property  was  not  of  sufficient  value  amply 
to  secure  tiie  sum  of  $500. 

It  seeuis  that,  in  a  prosecution  for  false  pretenses  in  the  sale  of  a  mortgage,  if 
the  real  estate  covered  by  the  mortgage  is  suHiciently  valuable  amply  to  se- 
cure the  sum  due  on  the  mortgage,  it  is  immateriid  that  the  respondent 
represented  the  red  estate  to  be  very  nnich  more  valuable  than  it  actually 
was. 

In  an  indictment  for  false  pretenses  in  the  sale  of  a  moi-tgage,  where  the  pre- 
tense is  that  the  property  covered  by  the  mortgage  is  not  sulijoct  to  any 
prior  liens,  an  allegation  that  the  iiropf'^y  was  subject  to  prior  liens,  but 
which  do(\s  not  set  them  out  or  describe  them,  is  insufficient. 

The  avenuents  in  criminal  pleadings  should  be  definite,  clear  and  distinct. 

Reproseiitations  of  future  events  are  not  false  pretenses,  which  must  be  as  to 
existing  facts. 

An  indictment  containing  contradictor}-  and  repugnant  allegations  is  bad. 

Elskikk,  J.  Tlie  appellant  was  indicted  in  the  court  helow 
for  obtaining  property  by  false  pretenses.  The  indictnieiit  con- 
tains two  counts,  which,  as  to  the  false  pretenses  charged,  are 
nearly  identical.  The  appellant  moved  to  quash  each  count,  but 
this  motion  was  overruled,  and  he  excepted.  lie  pleaded  not 
guilty,  and  was  tried  by  a  jury  and  was  found  guilty.    The  court 


M\' 


i 


212 


AMERICAN  CRIMINAL  RErORTS. 


f    .1    ■ 
!    ;  ■  : 


overruled  tl»e  motions  in  arrest  of  judj^niont  and  for  a  new  trial 
to  which  exceptions  were  taken.  Judgment  was  rendered  on  the 
verdict. 

The  a])pellant  lias  assigned  for  error,  the  overruling  of  his  mo- 
tions to  (juash  the  indictment,  in  arrest  of  judgment,  and  for  a 
new  trial. 

The  first  question  for  the  consideration  of  the  court  relates  to 
the  sufficiency  of  the  indictment. 

The  first  count,  omitting  the  formal  parts,  is  as  follows:  '"The 
grand  jurors  of  Tipton  county,  in  the  state  of  Indiana,  good  and 
lawful  men,  duly  and  legally  impaneled,  sworn  and  charged  in 
the  Tij)ton  circuit  court  of  said  state,  at  the  spring  term  f(jr  the 
year  1875,  to  inquire  into  felonies  and  certain  misdemeanors  in 
and  for  the  body  of  the  said  county  of  Tipton,  in  the  name  and 
by  the  autliorlty  of  the  state  of  Indiana,  on  their  oath  do  ])resent 
that  one  llobert  II.  Keller,  late  of  said  county,  on  the  lyth  day 
of  October,  in  the  ye.ar  1S74,  at  and  in  the  county  of  Ti])ton,  and 
state  of  Indiana,  did  then  and  there  unlawfully,  feloniously,  de- 
signedly and  with  intent  to  defraud  one  George  AV.  Eoyer,  falsely 
pretend  to  the  said  George  W.  Boyer,  that  he,  the  said  Ilobc.'t 
II.  Keller,  had  been  the  owner,  and  had  recently  sold  to  a  certain 
party  a  certain  piece  of  real  estate,  to  wit,  a  house  and  lut  of 
ground,  situated  in  the  city  of  Indianapolis,  in  the  county  of 
Marion,  in  the  state  of  Indiana,  for  a  large  sum,  to  wit,  the  snni 
of  thirty -five  hundred  dollars;  that  said  real  estate  was  of  great 
value,  and  fully  worth  the  said  sum  of  thirty -five  hundred  dol- 
lars, and  that  there  was  still  duo  the  said  Robert  II.  Keller,  njKjii 
the  purcliase  money  of  said  house  and  lot  of  ground  so  sold  as 
aforesaid,  the  sum  of  five  hundred  dollars,  and  that  there  was  no 
lien  or  incumbrance  on  said  house  or  lot  of  ground  except  the 
said  lien  of  five  hundred  dollars,  for  the  purchase  money  thereof, 
due  the  said  Robert  II.  Keller,  as  aforesaid,  and  that  if  the  said 
(Jeorge  ~\V.  IJoyer  would  sell  and  deliver  to  the  said  liobert  II. 
Keller,  goods,  chattels  and  pro]>erty  to  the  amount  of  five  hun- 
dred dollars,  he,  the  said  Robert  II.  Keller,  would  pay  the  said 
George  W.  Boyer  therefor,  in  and  with  a  ])romissory  note  given 
and  being  for  the  said  sum  of  five  hundred  dollars,  the  purchase 
money  due  the  said  Ilobert  II.  Keller,  upon  the  said  house  and  lot 
of  ground  as  aforesaid,  and  to  be  made  payable  to  the  said  George 
"W".  Boyer,  on  the  1st  day  of  March,  in  the  year  1875,  and  secured 


KELLER  V.  STATE. 


by  a  mortgage  upon  tlie  saitl  lionse  and  lot  of  ground,  and  that 
tlie  said  lien  of  five  hundred  dollurs,  for  the  purchase  money  for 
the  said  lious^e  and  lot  uf  gr^iuncl,  and  the  said  mortgage  securing 
the  saiae,  wari  all  and  the  only  lien  whatever  upon  the  said  house 
and  lot  of  ground,  and  that  the  said  house  and  lot  of  ground  ^vero 
of  the  full  value  of  thirty-five  hundred  dollars,  and  ample  and 
cutlicieiit  surety  for  the  payment  of  the  said  purchase  money  as 
aforesaid,  and  that  the  nute  executed  as  aforesaid  to  the  said 
GeoriTC  'SV.  l>oyer  would  be  of  the  full  value  of  and  worth  tho 
sum  of  five  humlred  dollars. 

Bv  nieiins  of  which  said  false  pretenses  then  and  there  made 
to  the  said  George  W.  IJoyer,  hy  the  said  Robert  II.  Keller, 
as  aforesaid,  he,  the  said  Robert  11.  Keller,  did  then  and  there, 
with  intent  to  cheat  ami  defraud  him,  the  said  George  W. 
Bover,  unlawfully  and  feloniously  obtain  and  receive  from  the 
said  George  W.  Boyer,  tlie  following  goods,  chattels  and  prop- 
ertv,  to  wit:  one  spring  wagon,  of  the  value  of  two  hundred 
and  twenty-five  dollars;  one  two  horse  wagon,  of  the  value 
of  one  hundred  and  fifty  dollars;  one  log  wagon  of  the  value  of 
one  luuulred  and  twenty-five  dollars;  all  of  the  said  goods, 
chattels  and  projierty,  being  of  the  aggregate  value  of  five  hun- 
dred dollars;  and  for  the  goods,  chattels  and  property  of  the  said 
George  AV.  Boyer,  and  in  payment  fV>r  the  said  goods,  chattels 
and  property  so  obtained  and  received  by  the  said  Robert  II. 
Keller,  from  the  said  George  W.  Boyer,  as  aforesaid,  he,  the  said 
George  "W.  Boyer,  did  receive  the  said  five  hundred  dollar  note, 
fully  relying  u]H)n  and  believing  said  false  and  fraudulent  pre- 
tense and  rei)resentations  made  to  him  by  the  said  Robert  II. 
Keller,  as  aforesaid,  and  believing  them  to  be  true;  whereas,  in 
truth  and  in  fact,  the  said  Robert  11.  Keller  had  not  then  recent- 
ly sold  to  a  certain  ])arty  a  certain  piece  of  real  estate,  to  wit:  a 
house  and  lot  of  ground  situate  in  the  city  of  Indianapolis,  iu 
the  county  of  Marion,  in  the  state  of  Indiana,  for  a  large  sum, 
to  wit:  for  the  sum  of  thirty -five  hundred  dollars,  as  aforesaid; 
and  that  said  house  and  lot  of  ground  were  not  then  of  the  value 
or  worth  thirty-five  hundred  dollars  as  aforesaid;  and  that  the 
said  lien  and  mortija<>'e  of  five  hundred  dollars  on  the  said  house 
and  lot  of  ground  for  the  purchase  money  thereof  as  aforesaid, 
was  not  the  oidy  lien  and  incumbrance  then  upon  said  house  and 
lot  of  ground,  but  there  were  various  and  numerous  other  liens 


'•m 


2U 


AMERICAN  CllIMINAL  RErORTS. 


tliureon,  older  ami  prior  to  the  said  lien  of  five  luuulred  dollars 
amoniitiiig  in  the  aggregate  to  two  thousand  dollars,  and  greatly 
exceeding  the  value  of  said  liouse  and  lot  of  ground;  and  that 
Baid  house  and  lot  of  ground  were  not  then  of  sufficient  value  to 
amjdy  and  sufficiently  secure  the  payment  of  the  said  iive  hun- 
dred  dollar  note,  as  aforesaid;  and  that  said  note,  executed  tu  the 
said  George  W.  Boyer,  as  aforesaid,  was  not  worth  or  of  the  val 
lie  of  five  hundred  dollars,  but  was  in  fact  entirely  worthless,  and 
of  no  value  whatever,  contrary  to  the  form  of  the  statute  in  sucli 
case  made  and  provided,  and  against  the  })eace  and  dlgnitv  of 
the  state  of  Indiana.' ' 

We  proceed  to  the  examination  of  the  first  error  assigned. 
The  first  count  in  the  indictment  has  been  set  out,  and  as  it  is 
quite  lengthy,  we  will  summarize  its  averments  and  negations. 

1.  It  is  averred  that  Robert  II.  Iveller  (falsely  pretended  that 
lie)  had  been  the  owner,  and  had  recently  sold  to  a  certain  party, 
■whose  name  is  not  given,  nor  is  it  averred  that  this  name  was 
unknown  to  the  jurors,  a  certain  piece  of  real  estate,  to  wit: 
a  house  and  lot  of  ground  situate  in  the  city  of  Indianapolis, 
county  of  ^Marion,  and  state  of  Indiana,  for  a  large  sum  of 
monej',  to  wit:  for  the  sum  of  thirty  five  hundred  dollars.  There 
is  no  further  descri])tion  of  such  real  estate  or  any  averment 
that  it  was  uidcnown  to  the  jurors. 

2.  That  said  real  estate  was  of  the  value  of  thirty-five  hun- 
dred dollars. 


3.  That  there  was  still  due  the  said   Robert  II.  Iveller, 


upon 


the  purchase  money  of  said  house  and  lot  the  sum  of  five  hun- 
dred dollars. 

4.  That  there  were  no  liens  or  incumbrances  ujion  the  said 
house  and  lot  exce])t  said  sum  of  five  hundred  dollars  for  the  un- 
paid purchase  money,  and  the  mortgage  securing  the  same. 

5.  That  the  said  house  and  lot  of  ground  were  of  the  full  val- 
ue of  thirty-five  hundred  dollars,  and  amjde  and  sufficient  secu- 
rity for  the  said  sum  of  five  hundred  dollars. 

C.  That  the  note  which  was  executed  by  the  purchaser  of  said 
real  estate  to  George  W.  Boyer,  to  whom  said  representations 
were  made,  and  in  reliance  upon  which  he  had  sold  to  said  Kel- 
ler certain  personal  property,  would  be  of  full  value,  and  worth 
the  said  sum  of  five  hundred  dollars. 

The  first  averment  is  very  vague  and  indefinite.     There  is  no 


KELLER  V.  STATE. 


215 


Bufficieiit  description  of  the  real  estate  alleged  to  have  been 
owned  and  sold  by  the  appellant.  Nor  is  the  name  of  the  pur- 
cim!<er  given.  Criminal  charges  must  be  })referred  with  reason- 
able certainty,  so  that  the  conrt  and  jury  may  know  what  they 
are  to  try,  of  what  they  are  to  accpiit  or  convict  the  defendant, 
and  so  that  the  defendant  may  know  what  he  is  to  answer,  and 
tiiat  the  record  may  show,  as  far  as  may  be,  of  what  he  has  been 
put  in  jeopardy.  The  averments  should  be  so  clear  and  distinct 
that  there  could  bo  no  diiiiculty  in  determining  what  evidence 
was  admissible  under  them.  It  fully  aj)pears  from  the  ovldenco 
in  llie  record  that  the  appellant  had  owned  and  transferred  lot 
No.  4(5,  in  Yundes'  subdivisu)n  of  outlot  Xo.  120,  in  the  city  of 
Indianapolis,  county  of  Marion,  and  state  of  Indiana.  This  ev- 
idence was  admitted  over  the  objection  and  exception  of  appel- 
lant. Its  admission  was  objected  to  on  the  ground  that  the  aver- 
ments of  the  indictment  were  neither  specific  nor  broad  enough 
to  render  such  evidence  admissible.  If  the  appellant,  in  his  rep- 
resentations to  ]>oyer,  did  not  describe  the  ])ro])erty  which  he 
had  owned  and  sold,  the  description  of  the  property  could  not 
have  been  introduced  in  that  portion  of  the  indictment;  but  the 
ilrst  averment  as  above  set  out  might  have  been  ])receded  or  fol- 
lowed by  a  statement  that  the  api)ellant  had  owned  and  recently 
sold  lot  40  in  Yandes'  subdivision  of  outlot  Xo.  129,  in  the  city, 
county  and  state  aforesaid,  and  that  the  rc'])resentations  relied 
upon  were  made  in  reference  to  s\ich  property.  If  the  name  of 
the  purchaser  of  such  lot  was  known  to  the  grand  jury,  it  should 
have  been  stated,  but  if  unknown,  that  fact  should  have  been 
averred. 
The  ne:;ation  to  the  first  averment  is  as  follows: 
"AVliereas,  in  truth  and  in  fact,  the  said  I{ol)ert  II.  Keller  had 
not  then  recently  S(dd  to  a  certain  party  a  certain  piece  of  real 
estate,  to  wit,  a  house  and  lot  of  ground  situate  in  the  city  of 
Indianapolis,  in  the  county  of  Marlon,  and  state  of  Indiana,  for 
a  large  sum  of  money,  to  wit,  for  the  sum  of  thirty-five  hundred 
dollars  as  aforesaid,  and  that  said  house  and  lot  of  ground  were 
not  tlien  of  the  value  of,  or  worth  thirty-five  luindred  dollars.'' 

By  the  above  averment  and  negation,  the  guilt  of  the  appel- 
lant is  made  to  depend  upon  the  question  whether  the  house  and 
lot  of  ground  had  been  sold  to  a  certaiii  party  for  the  exact  sum 
of  thirty -five  hundred  dollars,  and  whether  they  were  worth  that 


!  !* 


ff?: '.''v  M 

■';H  ■■,:!' 

w 

Ifi 

■'■■'4, in ' 

Mr 

■  "^v-  ■ 

W 

!:    1 

1 

210 


AMKinCAN  CHIMINAL  REPUllTS. 


exact  sum,  ••vhcn  it  nlioulil  have  1>een  uxivlo  to  depend  upon 
whether  the  Hi)i)ellunt  hail  sohl  said  huuHu  and  lot  of  j^M-ound  to 
any  jjerson  for  said  sum,  and  whetlier  tlio  j)roi)erty  was  of  siieh 
value  as  to  anij)ly  secure  Baid  sum  of  live  hundred  dollars  iilleged 
to  he  due. 

The  second  averment  is,  that  appellant  represented  that  said 
Vv'al  estate  was  of  the  value  of  thirty-tlve  hundred  dollars.  It  is 
contended  hy  counsel  for  appellant  that  a  statement  of  the  viiluo 
of  property  is  a  mere  expression  of  opinion  or  judgment,  about 
which  men  may  honestly  diil'er,  and  if  there  is  no  lixed  niarket 
value,  an  estimate  that  is  too  hi^di  will  not  constitute  tv  criminal 
false  pretense. 

The  question  discussed  hy  counsel  does  n(jt  squarely  arise  upon 
the  averment  in  the  indictment,  and  hence  we  do  not  eoiisiiler 
or  decide  the  question,  i)referrin^  to  await  until  it  arises  on  the 
evidence  or  instruction  of  the  court  based  upon  the  evidence. 

There  is  no  negation  of  the  third  averment,  hence,  it  is  admit- 
ted to  be  true,  and  no  evidence  would  be  adniissilde  to  ])rovc  it 
to  be  untrue. 

The  fourth  averment  and  its  ne_i;ation  arc  insufficient.  The 
ne<ration  to  the  fourth  averment  does  not  set  out  or  describe  the 
liens  that  constituted  the  prior  incumbrances,  llow  was  it  pos- 
sible for  the  appellant  to  ])repare  for  trial  under  such  an  nver- 
nient  and  negation  if  llow  could  he  show,  on  trial,  that  the  Hlmis 
])roved  by  the  state  had  no  vali<l  existence,  or  had  been  paid  otH 
He  would  have  no  notice  of  the  liens  relied  upon  until  the  evi- 
dence was  ottered  by  the  state.  It  would  be  contrary  to  well 
established  principles  to  allow  evidence  to  be  given  upon  a  ma- 
terial issue,  tending  to  fasten  fraud  and  falsehood  upon  the 
party,  without  any  averment  or  notice  in  the  indictment  of 
the  fact  sought  to  be  proved.  The  l*coj/Ie  v.  Millc/',  2  Parker 
C.  C,  19T. 

The  fifth  averment  and  its  negation  are  sufKcient. 

The  sixth  relates  to  a  future  event,  and  cannot  constitute  a 
criminal  false  pretense.  Bishop,  in  sec.  420  of  his  Crim.  Law, 
vol.  2,  p.  230,  says: 

"And  both  in  the  nature  of  things,  and  in  actual  adjudication, 
the  doctrine  is,  that  no  representation  of  a  future  event,  whether 
in  the  form  of  a  promise  or  not,  can  be  a  pretense,  within  the 
statute,  for  the  pretense  must  relate  either  to  the  past  or  to  tlie 


KELLER  I'.  STATE. 


ist 


prci<oiit."  See  Jonca  v.  The  tState,  50  Ind.,  473,  and  authorities 
there  cited. 

Altboiiifli  some  of  the  nvenneiits  are  sniTicieiit,  yet,  standing 
aloiic  1111(1  disconnected  witli  tliu  utlier  averments,  they  are  not  suf- 
ticii'iit  to  constitute  a  ^ood  indictment. 

There  is  a  direct  rejnignaiicy  in  tlie  averments  of  tlio  indict- 
ment, wiiicli  renders  it  fatally  defective.  It  is  alleged,  "  that  11! 
tlie  siiid  O'l'diye  W.  JiOi/er  wi>uld  sell  and  deliver  to  the  said  Hob- 
ai  11.  Ktllcr,  goods,  chattels  and  projierty  to  the  amount  of  fivo 
hiiiulrod  dollars,  he,  the  said  Rithci't  11.  Kdh:t',  would  pay  tho 
fiiiJ  O'coiyr  W.  Jloijef  therefor,  in  a  promisst>ry  note,  given  and 
lioiiig  for  tlie  said  sum  of  live  hundred  dollars,  the  purchase 
iiiuiicy  d.  0  the  said  Jioheii  H.  Keller  upon  tho  said  house  and 
lot  of  ground,  as  aforesiiid,  and  to  he  nuido  payahle  to  the  said 
Gi.of(je  ir.  lloijii'  on  the  1st  day  of  March,  in  the  year  1S75,  and 
a'ciired  l»y  mortgage  upciii  said  liouse  and  lot  of  ground,"  etc. 

It  is  alleged  that  Keller  was  to  jiay  lioycr  in  a  note  given  and 
being  for  the  said  jjurchase  money,  and  it  is  then  averred  that 
6iii(l  ..etc  is  to  ho  nnido  payahle  to  the  said  Jjoijei^  and  secured 
by  a  luortg'ige  upon  said  real  estate.  In  Tlie  State  v.  Ziucke,  35 
Liil,  •1I1>,  the  indictment  was  held  had  hecauso  it  charged  that 
the  pretense  was  made  to  induce  Kiser  to  hecoiue  the  security 
of  Locke,  on  a  six  hundred  dollar  note,  hut  that,  instead  of  going 
teeiirity,  he  hccamo  a  principal,  and  made  a  note  for  six  liundred 
ilullars,  payahle  to  Locke.  The  indictment  was  held  aml)iguou3 
and  uncertain,  and  an  indictment  must  be  direct  and  certain,  as 
it  rej,'ards  the  ])arty  and  the  ott'ense  charged.  Whitney  v.  The 
Stuh,  10  liid.,  404;  Walhi-  v.  The  State,  23  id.,  01;  IJicknell's 
Crini.  Trac,  W),  O;;,  04;  yTic  State  v.  Locke,  Hupni;  The  Com- 
Moimealth  v.  Mmjowaii,  1  Met.  (Ky.),  308;  The  People  v.  Gates, 
13  Wend.,  311. 

It  is  a  settled  rule  of  criminal  pleading,  that  the  ofiense 
charged  must  be  ])roved  in  substance  as  charged.  This  cannot 
be  clone  in  the  averment  under  examination.  The  two  aver- 
ments are  directly  repugnant.  Both  cannot  be  true.  The  facta 
of  the  case  are  not  correctly  stated.  It  is  averred  that  tho  note 
for  live  hundred  dollars  had  been  given  to  Keller,  and  was  se- 
cured by  mortgage.  It  was  shown  u])on  the  trial  that,  at  the 
time  the  representations  were  made,  Keller  had  agreed  upon  a 
Bale  of  his  house  and  lot  of  ground,  in  the  city  of  Indianapolis, 


^ 

i.WF^ 

Tni 

^71 

.'■':'    ''jj: 

rill 

^ 

■'   , .  J  1 

Pffll 

. 

'   '    r 

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■  ••'    i'    1 

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1    1 

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m 


218 


AMERICAN  CRIMINAL  REPORTS. 


but  tlie  deed  had  not  been  made,  nor  had  the  notes  and  raort- 
ga<^es  been  given,  and  tliat  these  facts  were  known  to  Bnijcr^  and 
it  was  then  agreed  that  a  note  for  five  hundred  dullars  should  be 
made  payable  directly  to  Bayer,  and  secured  by  mortgage;  and 
it  also  appears  that  this  was  done.  Such  proof  could  nut  sustain 
the  averments  of  the  indictment. 

We  are  very  clearjy  of  the  opinion  that  the  indictment  cannot 
be  sustained.  It  is  ambiguous,  uncertjiin,  repugnant,  and  de- 
fective in  its  averments  and  negations. 

The  judgment  is  reversed,  with  costs;  and  the  cause  is  re- 
manded, with  directions  to  the  court  below  to  sustain  the  motion 
to  quash.  The  clerk  will  give  the  proper  order  for  the  return 
of  the  prisoner. 


Jones  vs.  State. 
(50  Intl.,  473.) 

r^VLSE  PitETENSES :    ImVwtmcnt  —  Fnhe  token  —  Property  ohhijned. 

A  printed  business  card,  such  as  ordinarily  used  jy  business  mon,  purporting 
to  be  the  card  of  a  nui'.nifacturluj,'  (inn  in  ('.,  whiih  is  not  a  yfiiuine  bus- 
iness card  of  such  firm,  but  fraudulent,  is  a  false  token. 

An  indictment  for  false  pretenses,  which  does  not  alleyrii  that  the  prosi'cutor  ro- 
lled on  the  false  pretenses  as  true,  is  bad  on  a  motion  to  quash. 

An  inilictment  for  false  pretenses  which  does  not  set  out  thecontnwt  into  which 
the  prosecutor  was  induced  to  enter  by  means  of  the  falsi>  prel(>iisi's,  is  bml 
on  a  motion  to  quash,  liecause  it  does  not  show  why  or  how  the  prosecutor 
was  induced  by  means  of  the  false  pretenses  to  part  with  his  property. 

The  indictment  in  this  case  is  held  to  allege  facts  sufhcient  to  deceive  a  person 
of  ordinary  caution  and  i)rudence. 

Where  a  note  wa.s  obtained  by  falsi;  pnitcnses,  and  a  few  hours  afterwards  tlio 
respondent  induced  the  prosecutor  to  exchantfe  that  note  for  a  sim-uikI  of  thi; 
same  tenor,  because  tin,'  first  was  written  in  pide  ink,  it  was  lithl  that  tho 
evidence  was  sufficient  to  sustain  tlvj  allegation  in  the  iiidictmriit  wliich 
charged  the  obtaining  of  the  second  note  by  means  of  the  false  iireteusoi,  it 
beuig  all  one  ti'ansaction. 

BusKiKK,  J.  The  appellant  was  indicted  for,  and  convicted  in 
the  court  below  of,  obtaining  the  signature  of  Jej)tha  O.  IMay- 
field,  to  a  note  payable  to  ajipellant  by  false  pretenses. 

A  motion  to  quash  the  indictment  was  overruled,  and  an  ex- 
ception taken. 


JONES  V.  STATE. 


219 


A  plea  in  abatement  was  filed,  to  which  a  demurrer  was  sus- 
tained, and  an  exception  taken. 

A  jnotion  for  a  new  trial  was  overruled,  and  an  exception 
taken. 

A  motion  in  arrest  of  judgment  was  overruled,  and  an  excep- 
tion taken. 

Tlic  errors  assigned  arc  as  follows: 

1.  That  tlie  court  erred  in  overruling  the  motion  to  quasli  the 
indictment. 

2.  That  the  court  erred  in  sustaining  the  demurrer  to  the  plea 
in  abatement. 

3.  That  the  court  erred  in  overruling  the  motion  for  a  new 
trial. 

i.  That  the  court  erred  in  overruling  the  motion  in  arrest  of 
jmlfifment. 

"We  wil'  dispose  of  these  assignments  of  error  in  the  order 
Etateil.  Did  the  court  err  in  overruling  the  motion  to  quash  the 
indictment?  Tliat  portion  of  the  indictment  material  to  this 
qiiCstion  is  as  follows: 

"That  Edwin  E.  Jones,  on  the  llth  day  of  January,  1S75,  at 
said  county  of  Jeflerson,  feloniously,  designedly,  and  with  intent 
to  defraud  one  Jeptha  O.  Mayfield,  did  falsely  and  feloniously 
pretend  to  the  said  Jeptha  O.  Mayfield  that  he,  the  said  Edwin 
£.  Jones,  was  the  agent  of  a  firm  of  persons  in  the  city  of  Cin- 
cinnati, stiite  of  Oliio,  doing  business  under  the  firm  name  of 
'Mills,  Si)ilhneyer  &  Co.,  at  Xos.  3GS,  370  and  372  AVest  Third 
ftrcet,  in  said  city  of  Cincinnati;'  that  said  firm  were  largely 
engaged  in  tlie  uuuiufacture  of  a  certain  implement  called  *  ller- 
nian's  Improved  Lifting  Jack,'  aiid  tliat  lie,  die  said  Edwin  E. 
Jones,  had  authority  from  said  firm  to  sell  said  lifting  jacks  for 
the  said  firms,  and  to  contract  for  and  in  behalf  of  said  firm  for 
the  sale  of  said  lifting  jacks  by  siiid  Jeptha  O.  ALayfield,  and  did 
then  and  there  feloniously,  designedly,  and  with  intent  to  de- 
fraud said  Jeptha  0.  Mayfield,  exhibit  to  said  Jeptha  O.  May- 
field  a  certain  printed  card  of  said  firm  of  Mills,  Spillmeyer  & 
Co.,  and  which  said  card  was  and  is  in  the  words  and  figures  fol- 
lowing: 'Mills,  Si>illnieyer  &  Co.,  manufacturers  of  Herman's 
Improved  Lifting  Jack,  Xos.  308,  370  and  372  "West  Third  street, 
Cincinnati,  Ohio.  8eiid  orders  for  Herman's  Lifting  Jack,  ia 
accordance  with  contract;'  and  did    falsely,   feloniously,  de- 


il 


220 


AMERICAN  CRIMINAL  REPORTS. 


signedlj',  and  with  intent  to  defraud  said  Jeptha  0.  ]\[iiyfiel(l, 
pretend  to  sai<l  Joptlia  0.  Maytield,  that  said  card  was  the 
genuine  card  of  said  linn  of  Mills,  Spilhnejor  <k  Co.,  aforesaid; 
that  said  Jeptlia  O.  ;A[ayfield  relied  on  said  pretenses  so  made 
to  him  by  said  Edwin  E.  Jones,  and  by  means  of  said  false  pre- 
tenses tlie  said  Edwin  E.  Jones  did  then  and  there  feloniously, 
falsely,  designedly,  and  with  intent  to  defraud  said  Jeptlia  0, 
Mayfield,  obtain  from  said  Jeptlia  ().  Mayfield,  a  note  of  the  said 
Jeptlia  ().  Maytield  for  the  sum  of  four  hundred  dollars,  which 
note  is  of  the  tenor  following: 

"Madison  P.  ().,  jKFFi;usoN  Coi.xn-, 
"§■100.  January  14.,  iSj^. 

"  Six  months  after  date  I  promise  to  pay  to  the  order  of  E.  E. 
Jones,  at  the  First  National  Bank,  Indianaj)olis,  Indiana,  four 

hundred  dollars,  with  interest  at  the  rate  of per  aiumiu 

from  date,  value  received,  without  any  relief  whatever  from  val- 
uation or  ai)i)raisement  laws.  The  drawers  and  endorsers  sever- 
ally waive  presentment  for  payment,  protest,  and  notice  of  pro- 
test and  non-i^ayment  of  this  note.  If  this  note  is  not  ]>uid  at 
maturity,  the  undersigned  agrees  to  pay  the  expenses  of  collec- 
tion, including  attorney's  fees.  J.  O.  Mavi'iklu. 

"With  intent  then  and  there  to  cheat  and  defraud  him,  the  said 
Jeptha  O.  Maytield;  wdiereas,  in  truth  and  in  fact,  the  said  firm 
of  Mills,  Spillmeyer  &Co.,  were  not  engaged  in  the  majinfacture 
of  the  implement  called  '  Herman's  Improved  Lifting  Jack,'  and 
whereas,  in  truth  and  in  fact,  said  Edwin  E.  Jones  was  not  then 
and  there  the  agent  of  said  lirm  of  ^lills,  S])illmeyer  ^  Co.,  and 
did  not  then  and  there  have  any  authority  from  said  firm  to  sell 
said  lifting  jacks  for  said  firm,  and  to  contract  for  the  sale  of  tlie 
same  by  said  Jeptha  O.  Maytield,  for  said  lirm,  and  whereas,  in 
truth  and  in  fact,  the  said  card,  so  exhibited  as  aforesaid  and 
hereinbefore  set  forth,  was  not  then  and  there  the  genuine  card 
of  said  firm  of  Mills,  Spillmeyer  tt  Co.,  contrary  to  the  form  of 
the  statute,"  etc. 

Section  27,  2  G.  &  II.  4i5,  reads  as  follows:  "If  any  person, 
with  intent  to  defraud  atiother,  shall  designedly,  l)y  color  of  any 
false  token  or  writing,  or  any  false  ])retense,  obtain  the  sigiiatuj'c 
of  any  person  to  any  written  instrument,  or  obtain  from  any 
person  any  money,  transfer,  note,  bond  or  receipt,  or  thing  oE 


JONES  r.  STATE. 


221 


value,  sncli  person  shall,  upon  conviction  thereof,  be  impris- 
oued,"  etc. 

The  (jmvame)i  of  the  crime  consists  in  obtaining  the  signatures 
of  any  person  to  any  written  instrument,  or  in  obtaining  from 
any  person  any  money,  transfer,  note,  bond  or  receipt,  or  thing 
of  value. 

The  offense  may  be  committed  by  two  means:  first,  by  color 
of  any  false  token  or  writing;  second,  by  any  false  pretense. 
The  word  "token,"  in  its  ordinary  signification,  means  "a  sign," 
"  a  mark,"  "  a  symbol."  The  words  *'  writing  "  and  "  written  " 
include  printing,  lithographing,  or  other  moilo  of  representing 
TOrds  and  letters.     Sec.  1,  subdivision  nine,  2  Cx.  &  II.,  338. 

The  indictniL'nt  in  the  present  case  attempts  to  charge  that  the 

signature  of  Mayjield  was  obtained  to  the  note  by  means  of  a 

■  false  token,  and  by  pretending  that  he  was  the  lawful  agent  of 

Mills,  S_p'dlineijer  dc  Co.,  and  had  authority  for  and  in  behalf  of 

said  tirni  for  the  sale  of  said  lifting  jack. 

The  first  qnestion  is,  whether  the  printed  card  set  out  in  the 
indictment  comes  within  he  meaning  of  the  words '"  token  or 
writing,"  used  in  the  statute. 

Eouvier's  Law  Dictionary  defines  the  legal  meaning  of  the 
word  "  token  "  thus:  "  Token.  A  document  or  sign  of  the  ex- 
istence of  a  fact.  Tokens  are  either  public  or  general,  or  privy 
tokens.  They  are  either  true  or  false.  When  a  token  is  false, 
and  indicates  a  general  intent  to  defraud,  and  is  used  for  that 
purpose,  it  will  render  the  ofi'ender  guilty  of  the  crime  of  cheat- 
ing, 12  Johns.,  N.  Y.,  202;  but  if  it  is  a  mere  privy  token,  as 
counterfeiting  a  letter  in  another  man's  name,  iu  order  to  cheat 
but  one  individual,  it  would  not  be  indictable.  S)  Wend.,  X.  Y., 
182;  1  Dull.,  Penn.,  47;  2  Const.  So.  C,  131);  2  Va.  Cas.,  G5;  4 
Hawks,  X.  C,  4-18;  (5  Mass.,  72;  12  Johns.,  X.  Y.,  293;  2  Dev., 
X.  C,  109;  1  Ilich.,  So.  C,  244." 

We  think  the  token  exhibited  by  the  ap]iellant  was  a  general 
token,  and  indicated  a  general  intent  to  defraud,  and  when  ac- 
companied by  the  false  jiretenses  alleged  iu  the  indictment,  was 
calculated  to  deceive  a  person  of  ordinary  intelligence  and  pru- 
dence. 

It  is  very  earnestly  contended  by  counsel  for  appellant  that 
the  false  pretenses  set  out  in  the  indictmenc  are  not  sufticient  to 
constitute  the  crime  attempted  to  be  charged.    The  first  objec- 


222 


AMERICAN  CRIMINAL  REPORTS. 


tion  urged  to  this  part  of  the  indictment  is,  that  the  word  "  pre. 
tended"  is  used  instead  of  the  word  "represented."  In  our 
opinion,  the  objection  is  untenable.  The  word  "  pretense "  is 
used  in  the  statute  defining  the  crime.  The  word  "  pretend  "  is 
the  verb  of  tlie  noun  "  pretense."  The  form  of  indictment  given 
by  Ijicknell  in  liis  Criminal  Practice,  p.  3-11,  uses  the  word  "  pre. 
tense."     See  Whart.  Crim.  Law,  sec.  214-1. 

It  is  next  urged  that  the  indictment  fails  to  aver  any  false  pre- 
tense which  was  sufficient  to  induce  a  person  of  ordinary  caution 
and  prudejice  to  execute  his  note  for  a  large  sum  of  money,  and 
we  are  referred  to  the  following  adjudged  cases:  The  State  v, 
3la<jee,  11  Ind.,  ISl;  Johnson  v.  The  State,  11  id.,  iSl;  The 
State  V.  O/'vls,  13  id.,  569. 

In  the  first  case  cited,  it  was  said:  "The  pretenses  must  be 
of  some  existing  fact,  made  for  the  purpose  of  inducing  the 
prosecutor  to  part  with  his  property,  and  to  which  a  person  of 
ordinary  caution  would  give  credit.  A  pretense,  therefore,  that 
a  party  would  do  an  act  he  did  not  intend  to  do  is  not  within 
the  statute,  because  it  is  a  mere  promise  for  his  future  conduct. 
Roscoe  Crim.  Ev.,  40.5,  et  seq.\  11  Wend.,  557;  14  id.,  547; 
3  Hill.,  1G9;  4  id.,  9,  120;  19  Pick.,  ISO.  These  authorities 
plainly  show  that  any  representation  or  assurance,  in  relation  to 
a  future  event,  may  be  a  promise,  a  covenant,  or  a  warranty,  but 
cannot  amount  to  a  statutory  false  pretense." 

In  the  second  case  cited,  the  indictment  was  held  to  ])C  bad, 
because  it  was  not  averred  that  the  checks  were  delivered  to  the 
prosecuting  witness,  and  were  by  him  received  in  payment  fur 
the  harness.  The  case  has  but  little,  if  any,  application  to  the 
present  case. 

The  case  of  The.  State  v.  Orvis,  siij)m,  is  in  several  respects 
much  like  the  present  case.  In  that  case,  the  indictment  was 
held  to  be  bad,  for  the  reason  that  it  did  not  appear  therefrom 
that  there  was  any  contract  or  agreement  between  the  defendant 
and  Smith,  for  the  purchase  bj-  Smith  of  an  agency  to  sell  the 
articles  mentioned,  or  that  Smith  parted  with  his  money  for  the 
purchase  of  an  agency  to  sell,  or  any  other  interest  in  the  articles 
named.  In  other  worils,  that  no  connection  was  shown  between 
the  pretenses  alleged  and  the  obtaining  of  the  money.  In  tliat 
case,  the  indictment,  after  setting  forth  the  false  pretenses  and 
negativing  the  averments,  concluded  as  follows: 


JOXES  V.  STATE. 


223 


"  By  color  and  means  of  which  said  false  pretense  and  pre- 
tenses, he,  the  said  Charles  13.  Orvis,  then  and  there,  on,"  etc., 
'•did  nnlawfully,  feloniously,  designedly  and  falsely  obtain  from 
said  John  F.  Smith,  forty  dollars,  then  and  there  being  the  prop- 
erty of  said  John  F.  Smith,  contrary,"  etc. 

Tliat  portion  of  the  indictment  in  the  case  in  judgment  is  as 
follows: 

"  And  by  means  of  said  false  pretenses,  the  said  Edwin  E. 
Jones  did  then  and  there  feloniously,  falsely,  designedly,  and 
with  intent  to  defraud  said  Jeptha  0.  Mayfield,  obtain  from  said 
Jeptha  0.  Minjfield,  a  note  of  the  said  Jeptha  0.  Mayjield,  for 
tlie  sum  of  four  hundred  dollars,  which  note  is  of  the  tenor  fol- 
lowing," etc, 

Tlicre  is  no  averment  that  the  said  Mayfield  was  induced,  by 
means  of  said  false  token  and  pretense,  to  purchase  of  said  Jones 
the  right  to  sell  said  lifting  jack,  and  that  in  consideration  of 
said  purchase,  he  executed  the  note  set  out  in  the  indictment. 
In  other  words,  there  is  no  connection  shown  between  the  false 
pretenses  alleged  and  the  obtaining  of  said  note.  It  is  not 
shown  why  or  upon  what  consideration  or  for  what  purpose  the 
note  was  executed.  Suppose  Jones  did  exhibit  the  card  of  the 
said  firm  as  genuine,  when  it  was  false  and  forged,  and  suppose 
he  did  pretend  that  he  was  the  lawful  agent  of  said  firm,  and  had 
authority  to  make  contracts  in  the  name  and  on  behalf  of  said 
firm  for  the  sale  of  said  lifting  jack,  when,  in  truth  and  in  fact, 
he  was  not  such  agent  and  had  no  authority  to  contract  in  the 
name  and  on  l)ehalf  of  said  firm.  The  facts  assumed  to  exist 
wholly  fail  to  show  any  consideration  for  the  note,  or  any  reason 
why  it  was  executed.  The  necessary  connection  between  the 
false  pretenses  and  the  execution  of  the  note  would  liave  been 
shown  by  an  averment  that  the  said  Mayfield,  by  color  and 
means  of  said  false  pretenses  and  in  reliance  upon  the  same  as 
true,  had  been  induced  to  purchase  from  the  said  Jones,  as  such 
agent,  the  right  to  sell  said  machine,  for  the  sum  of  four  hun- 
dred dollars,  and  in  consideration  thereof,  had  executed  the  said 
note. 

It  is  also  claimed  by  counsel  for  appellant  that  the  note  set 
out  in  the  indictment  is  not  the  one  that  was  obtained  by  the 
false  pretenses  alleged.  The  facts  are  these:  After  Jones  had 
obtained  one  note  from  Mayfield,  lie  went  bade  to  his  house,  aad 


'm 


1 


'TO. 

■■'   'if  ph  : 

.  1     s?*'.' 


224 


AMERICAN  CRIMINAL  REPORTS. 


■i:  if'!-: 


upon  tlio  ground  that  such  note  and  contract  were  written  in 
pale  ink,  iTiduced  ]\[ayfield  to  surrender  uptlie  contract.  Tliere- 
upon  a  new  note  and  contract  were  drawn  and  executed.  Tiiev 
were  tlie  same  as  tliose  surrendered,  excejit  written  in  different 
and  bott'"'  '  V.  The  execution  of  the  first  note  was  obtained  by 
meiai-  <  e  ^Ise  pretenses  allei^ed,  and  the  second,  by  means 
of  the''!  ..  .etc'.  The  point  is  not  entitled  to  much  considera- 
tion. There  was  no  consideration  for  the  second  note,  except 
that  M-lich  f-'Miporif'i^  "^he  first.  It  was,  in  substance,  one  trans- 
action, and  the  fact  that  th'>  note  set  out  in  tlie  indictment  was 
executed  a  few  hours  after  the  first  cannot  change  its  legal  char- 
acter. 

"\Ye  thinlv  the  pretenses  alleged  in  the  indictment  were  suffi- 
cient to  deceive  a  ])erson  of  ordinary  caution  and  prudence.  It 
is  true,  that  many  persons  would  not  have  been  deceived  thereby. 
They  might,  by  reason  of  their  long  experience  and  greater 
shrewdness,  have  detected  the  fraud,  or,  having  their  suspicions 
excited,  they  w(Mild  have  communicated  to  the  firm  in  Cincin- 
nati. Jjut  laws  are  not  made  for  the  protection  of  the  shrewd 
and  business  man  oidy,  but  for  the  entire  community.  In  the 
enactment  of  criminal  laws,  the  legislature  ado^jts,  as  a  standard 
of  intelligence,  neither  the  highest  nor  the  lowest,  but  the  me- 
dium. The  law  oidy  requires  the  exercise  of  ordinary  caution 
and  prudence.  Business  could  not  be  transacted  witlumt  placins; 
confidence  in  the  representations  of  persons  engaged  therein. 
While  the  law  does  not  encourage  blind  confidence,  it  does  not 
expect  those  engaged  in  the  ordinary  afi'airs  of  life  to  jidsscss 
the  shrewdness  and  cunning  of  the  practiced  detective.  The 
question  therefore  is,  in  such  a  case  as  the  present,  what  would 
a  man  of  ordinary  intelligence  and  caution  have  done  under  the 
facts  and  circumstances  surrounding  this  transaction?  Would 
such  a  man  have  believed  and  acted  upon  such  pretenses?  If  he 
would,  the  case  is  made  out. 

For  the  failure  to  allege  that  May  field  relied  upon  such  pre- 
tenses as  true,  and  upon  the  faith  thereof,  purchased  from  Jones 
the  right  to  sell  such  "  lifting  jack,"  and  in  consideration  thereof, 
executed  the  note  set  out  in  the  indictment,  we  must  hold  the 
indictment  bad. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  di- 
rections to  the  court  below  to  sustain  the  motion  to  quash  the 


MARANDA  v.  STATE.    WATERMAN  t'.  PEOPLE. 


225 


indictment.    The  clerk  will  give  the  proper  order  for  the  return 
of  the  prisoner  to  the  jail  of  Jefferson  county. 


'■m  ml 

. 

-  •];  li' 

m 

If 

Makanda  vs.  State. 
(44  Tex.,  442.) 


An  indictment  for  false  protonsos  which  does  not  allege  that  the  respondent 
"  knowingly  "  made  the  false  pretenses  is  bad  on  a  motion  in  arrest  of 
judgment. 

ilooRE,  A.  J.  The  motion  in  arrest  of  judgment  should  have 
been  sustained.  Knowledge  of  the  false  preten  o  by  means  of 
which  money  or  property  is  fraudulently  obtained  is  an  essential 
constituent  of  the  olfense  with  which  appellants  are  charged. 
"Without  proof  that  they  knew  that  the  pretense  was  false,  evi- 
dently they  should  not  be  convicted.  And  although  the  word 
"knowingly"  is  not  one  of  the  statutory  words  used  in  defining 
the  offense,  still  as  the  offense,  as  defined  by  the  statute,  clearly 
re(]uirc»  that  it  shall  be  jiroved,  we  think,  by  the  rules  of  correct 
pleading,  it  should  be  averred  in  the  indictment.  And  so  it  is 
held  by  courts  of  the  highest  authority  and  standard  commenta- 
tors. {Itefjina  v.  PhUjwtts,  1  Car.  &  Kir.,  112;  2  Bish.  Cr. 
Proc,  sec.  172.)  The  necessity  for  such  an  averment  in  the  in- 
dictment has  been  clearly  recognized  by  this  court  in  the  opinion 
of  Mr.  Justice  Devine  in  the  case  of  State  v.  Levi  (41  Tex., 
5G3).    The  judgment  is  reversed  and  the  cause  remanded. 

Iteversed  and  remanded. 


Watekmax  vs.  People. 

(67  lU.,  91.) 

FonGEiiT:    Letter  of  introduction. 


A  letter  of  inti-oduction  directed  "to  any  railroad  superintendent,"  bespeaking 
courtesies  toward  the  bearer,  has  no  legal  validity  and  affects  no  lethal  rights, 
and  is  not  a  subject  of  forgery. 

Brkese  J.    This  was  an  indictment  in  the  criminal  court  of 
Cook  county,  against  plaintiff  in  error  and  one  William  E.  Dun- 
dee, for  forgery. 
Vol.  I. -15     . 


w 


i 


AMERICAN  CRIMTXAL  REPORTS. 


The  writing  alleged  to  liave  been  forged  was  as  follow 


s: 


The  Delawakk  &  IIunsoN  Canal  Company, 
II.  A.  Fonda,  Alhany  and  Susquehanna  DejHd'tment, 

Su2>erintcn(lcnt.  Albany,  N.  Y.,  jUajunt  2j,  iSjj. 

To  any  railroad  superintendent:  The  bearer,  T.  11.  "Wilev, 
has  been  employed  on  the  A.  <ic  S.  R.  It.  as  brakeman  and  freiijlit 
hand.  Any  courto!^ies  shown  him  will  be  duly  api)rociiited,  mid 
reciprocated,  shoxdd  o]>portunity  offer. 

Very  resji'y  and  truly  yours, 

II.  A.  Fonda,  Siipt. 

Tlie  indictment  framed  upoii  this  writing  contains  not  a  single 
averment  of  any  extrinsic  matter  which  could  give  the  instru- 
ment forged  any  force  or  ell'ect  beyond  what  appears  on  its  face. 
Ko  connection  is  averred  between  the  ])arty  to  whom  the  writ- 
ing is  addressed  and  the  Chicago,  Ilock  Island  &  Pacilic  Rail- 
road Company.  Xor  is  it  averred  that  the  prisoner  attempted 
to  pass  the  writing  upon  that  company. 

The  writing,  if  genuine,  has  no  legal  validity,  as  it  affects  no 
legal  rights.  It  is  a  mere  attem])t  to  receive  courtesies  on  a 
promise,  of  no  legal  obligation,  to  reciprocate  them. 

AVe  are  satisfied  that  the  writing  in  question  is  not  a  subject 
of  forgery,  and  no  indictment  can  be  sustained  on  it,  and  no 
averments  can  aid  it. 

It  is  a  mere  letter  of  introduction  which,  by  no  possibility. 
could  subject  the  supposed  writer  to  any  pecuniary  loss  or  legal 
liability.  As  well  remarked  by  the  prisoner's  counsel,  conrte- 
eics  are  not  the  subject  of  legal  fraud. 

The  motion  in  arrest  of  judgment  should  have  been  allowed. 
To  refuse  it  was  error. 

As  no  prosecution  can  be  founded  on  the  writing,  the  judg- 
ment must  be  reversed,  and  the  prisoner  discharged  from  cus- 
tody. 

Judgment  reversed. 


WILLIAMS  V.  STATE. 


227 


"Williams  vs.  State. 

(51Ga.,  535.) 

Fouoeuy:    I)iij)cr/ect  instrument  —  Indictment. 

An  indictment  chavfring  respondent  with  fcrging  a  bank  check  payiable  to  the 

order  of ,  is  had  on  denuuTcr.    A  check  not  payable  to  bearer,  or  to 

tlie  order  of  a  named  person,  is  so  imperfect  tliat  it  could  not  defraud  any- 
one. 

An  indictment  for  foryery,  which  docs  not  allege  who  was  intended  to  be  de- 
fmuded  by  the  forged  instniment,  is  bad  on  demun*er. 

The  defendant  was  indicted  for  the  oftense  of  forgery.  In  the 
indictment  he  was  charged  witli  falsely  and  fraudulently  making 
and  signing  a  certain  false,  fraudulent  and  forged  bank  check, 
ill  the  words,  letters  and  figures,  printed  and  written  as  follows, 
to  wit: 

"Xo.  7G.  Savannah,  Ga.,  Ilay  2^t/i,  iS/j. 

"Central  Railroad  and  Banking  Co.,  pay  to  the  order  of 

three  hundred  and  sixty  dollars. 

(Signed)  «J.  Lamak." 

nie  defendant  was  also,  in  ctnc  of  the  counts  of  the  indictment, 
charged  with  having  falsely  and  fraudulently  uttered  and  pub- 
lislied  as  true  the  forged  and  counterfeited  check  above  described, 
knowing  the  same  to  be  counterfeited  and  forged,  with  intent  to 
defraud,  l)ut  it  is  not  alleged  whom  he  intended  to  defraud.  On 
arraignment,  the  defendant  demurred,  in  writing,  to  the  suffi- 
ciency of  the  indictment,  which  demurrer  was  overruled,  and  the 
defendant  excepted.  The  case  then  proceeded  to  trial,  and  the 
jury  found  the  defendant  guilty  on  the  second  count  in  the  in- 
dictment. 

The  exceptions  to  the  charge  of  the  court,  and  refusal  to  charge 
as  requested,  are  substantially  embraced  in  the  exception  to  the 
overruling  of  the  demurrer,  and  will  be  considered  together. 

1.  The  demurrer  to  the  indictment  was  on  the  ground  that  the 
bank  check  alleged  to  have  been  forged  was  incomplete,  and 
coidd  not  have  defrauded  anyone.  The  check  was  not  payable 
to  bearer,  or  to  the  order  of  any  named  person,  and  therefore 
was  incomplete  as  a  bank  check,  and  could  not  have  defrauded 
the  bank  or  the  drawer  of  the  check. 

2.  In  the  case  of  the  People  v.  Oalloway,  17  "Wend.,  540,  the 


1: 


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228 


AMERICAN  ClllMIXAL  RErOUTS. 


cases  bearing  u])ou  tliis  (juestlon  AVcrc  reviewed,  aiul  the  juinel- 
ple  to  be  dednceil  from  tiieiii  i.s,  that  if  the  iiistruiuent  alleged 
to  have  licen  forged  is  so  inij)erfect  and  incomplete  that  no  one 
caiv  be  defrauded  by  it,  then  the  defendant  cannot  be  convicted 
of  tliat  offense. 

3.  Besides,  it  is  not  alleged  in  this  indictment  that  the  de- 
fendant intended  to  defraud  any  person  by  the  making,  signinir, 
littering  or  publishing  of  the  instrument  described  in  the  iiulict- 
ment. 

The  indictment  alleges  that  it  was  done  by  the  defendant  witli 
intent  to  defraud,  but  whom  he  intended  to  defraud  is  not  alleged, 
The  court  erred  in  overruling  the  demurrer  to  the  indictment. 

Let  the  judgment  of  the  court  below  bo  reversed. 


Browx  vs.  Pkople. 

(66  111.,  314.) 

FoKGEUV :    Variance  —  Tenor, 


An  indictment  for  forcing  a  note  purportod  to  set  forth  the  note  according  to 
its  tonor.     The  signature  to  the  note,  as  stated  in  the  indictment,  was, 

Ills  his 

Otha  X  Carr.    The  note  ofl(!reil  in  ev-idonce  was  signed  Oatha  x  CaiT,  IhU, 

murk.  mark. 

a  fatal  variance,  and  the  note  inadnii.ssible. 

Tlie  word  "  tenor  "  binds  the  pleader  to  the  strictest  accuracy. 

Where  the  record  does  not  show  whether  inadmissible  evidence  \\l""'h  was 
objected  to  was  admitted  or  not,  but  the  court  can  see  from  the  record  that 
if  such  evidence  was  not  fidmitted,  there  is  nothing  to  sustain  tlit}  voniid, 
the  judgment  and  verdict  will  lie  set  aside.  If  the  objectionable  evidenci' 
was  admitted,  that  is  en-or.  If  it  was  not,  the  verdict  is  erroneous  Ijecaurf 
there  is  nothing  to  support  it.    In  either  ciise  there  is  error. 


"Walker,  J.  This  was  an  indictment  for  forgery,  found  k 
the  grand  jury  of  Warren  county  against  plaintiff  in  error  and 
one  Robinson. 

Plaintiff'  in  error  was  arrested,  arraigned,  and  tried  by  the 
court  and  a  jury,  found  guilty  and  sentenced  to  continenient  in 
the  penitentiary  at  hard  labor  for  one  year.  To  reverse  that  judi;- 
ment,  the  record  is  brought  to  this  court  on  error,  and  varions 
grounds  are  iirged  for  reversal. 

On  the  trial,  the  prosecution  offered  in  evidence  the  instru- 


i 


BUOWN  V.  THE  I'KOPLE. 


2i>0 


'IPfl'fr 


incut  nlli'{,'t'<l  to  luivo  been  for^^ed,  when  accused  objected  on  tlio 
^.Tiiuiiil  of  a  variance  between  the  iudictnient  and  the  instniuieiit 

yrt'ereil. 

The  iiidiotnient  contained  twO  counts,  i;i  the  first  of  wliich  it 
i>iiveiTe(l  that  accused  ''  unhiwfully  and  feloniously  did  falsely, 
fniuduleiitly  ninke  and  foi\i,'e  a  certain  promissory  note  for  the 
l>;iviiieiit  of  money,  and  the  signature  and  mark  of  one  Otha  Carr 
to  .said  promissory  note,  i)urportin<^  to  be  made  and  executed 
I)v  said  Otha  Carr.  The  tenor  of  which  promissory  note  is  as 
follows,  to  wit: 
"AloO.OO.  ]>KKWICK,  111.,  Ainj.  2p,  /S/o. 

"Six  months  after  date,  for  value  received,  I  jtromise  to  pay 
J.  B.  Drake,  or  order,  one  hundred  and  fifty  dollars,  with  inter- 
est at  10  per  cent.  ])er  annum  till  paid. 

"Witness  by  II.  N.  Urown.  Otha  x  Caru." 

mark. 

The  second  count  avers  the  uttering  of  a  promissory  note, 
knowing  it  to  be  false,  fraudulent,  forged  and  counterfeit,  "  the 
tenor  of  which  counterfeited  ])romi8sory  note  is  as  follows,  to 
vit:  Then  follows  the  co])y  of  a  note  in  all  respects  similar  to 
tliiit  Bet  out  in  the  first  count  of  the  indictment. 

The  note  olfered  in  evidence  purports  to  have  been  signed 

Ills 

"(ktha  X  Carr."    The  difierence  hi  the  manner  of  spelling  the 

murk. 

figiiature  as  described  in  the  indictment,  and  of  that  to  the  in- 
ftnunent  offered  in  evidence,  is  the  variance  relied  on  by  defend- 
ant below.  In  "Wharton's  Am.  Cr.  Law,  vol.  2,  sec.  1471,  Gth 
«].,  it  is  said,  an  omission  of  a  jiart  of  the  date  is  fatal  under 
siicli  an  averment.  It  is  further  said,  *'  but  where  the  indict- 
ment charges  the  note  to  be  in  purport  and  eft'ect  following.  It 
was  held  that '  I  promise '  was  an  immaterial  variance  from  '  I 
promised.'  It  would  seem,  however,  that  the  distinction  taken 
in  the  last  case  between  the  averments  '  words  and  figures  follow- 
ing,' and  'tenor  and  eft'ect,'  if  such  was  actually  iiitended,  is  not 
in  conformity  with  precedents.  The  word  'tenor'  binds  the 
pleader  to  the  strictest  accuracy."  And  for  this  last  proposition, 
reference  is  made  to  I?ex  v.  Powell,  2  East's  Pleas  to  the  Crown, 
976.  Again,  the  same  author  says,  in  sec.  1476,  "  An  indictment 
for  forgery  of  an  instrument,  professing  to  set  it  out  according 
to  its  tenor,  should  give  the  names,  in  describing  the  instrument, 
spelled  as  they  appear  spelled  in  the  original."    And  this  rule 


i'l 


200 


AMKRICAN  CIILMINAL  RKPORTS. 


ii]»jiL'tir.s  to  1)0  su])i)nrte(l  by  authority,  and  we  recognize  it  a< 
lit'iiig  correct.  The  nufiie  is  diU'erently  Hpelled  in  the  iiulictiiii'iit 
ami  tlio  note  oilereil  in  this  case,  and  is  nianifestly  fulsie  within 
the  rule  thus  announced. 

We  have  thus  far  considered  the  case  as  though  the  note  w;u 
read  in  evidence,  although  the  record  only  states  that  tlie  )itn. 
plo's  attorney  olVered  the  note  in  evidence,  to  which  dcfoiuliiiit's 
attorney  objected,  on  the  ground  of  variance  between  the  nnto 
described  in  the  indictment  and  the  note  oilbred.  AltlidUfih  the 
record  fails  to  show  that  the  note  was  /ead  to  the  jury,  still  the 
question  of  variance  would  jierhaps  arise  in  another  trial,  ami 
hence  we  have  chosen  to  decide  the  (juestion. 

]jut  if  the  note  was  not  read  in  evidence,  then  the  cvidince 
wh(»lly  fails  to  support  the  verdict.  In  such  a  case  there  is  noth- 
ing to  sui)port  the  finding.  In  either  case,  however,  the  jiuli;- 
ment  must  be  reversed.  If  it  was  read  in  evidence,  it  was  error, 
because  of  the  variance,  and  if  it  was  not  read,  then  there  '> 
error,  as  the  verdict  and  judgment  have  no  basis  on  which  to  rest. 

The  judgment  of  the  court  below  is  reversed,  and  the  caiue 

remanded. 

Judgment  reversal 


L  ^kM,  ' 

u 

w^^ 

Mpl 

In 

V 

■ 

MiLLEB  VS.  State. 

(51  Ind.,  405.) 

FonoKiiv :    EdiUnce  —  Election. 

On  the  trial  of  an  indictment  containing  two  counts,  one  of  wliidi  alleges  tii; 
forging  of  a  draft  and  the  other  tlie  uttering  and  publisliing  of  tLo  forj-'il 
draft  as  true,  it  is  not  error  for  the  court  to  refuse  to  require  the  prosecutor 
to  elect  on  which  count  he  will  proceed  to  trial.  This  is  a  uiattor  in  tliodi.-- 
cretion  of  the  trial  court. 

The  uttering  and  i)ublisliing  of  a  forged  instrument  by  the  respondent  raisc:f  no 
presumption  of  law  that  he  connnitted  the  forgeiy. 

On  a  charge  of  forgery  tlie  ntt<'ring  and  pul)lislung  of  the  forged  instnnnont 
are  circamstances  to  be  weighed  by  the  jury  in  connection  with  oilier  evi- 
dence in  the  case. 

"WoEDEN,  J,  The  appellant  was  indicted  for  forgery,  the  in- 
di'ctment  containing  two  counts.  The  first  charged  him  with 
having  forged  the  name  of  Calvin  Mullen  upon  the  back  of  n 
draft  drawn  by  the  First  National  Bank  of  Xenia,  Ohio,  upon 
the  First  National  Bank  of  Cincinnati,  Ohio,  for  the  sum  of 


MILLKR  V.  STATE. 


231 


cidit  Ininclred  clullai'8,  payable  to   the   order    of    said   Calvin 
Mullen.    . 

Tlio  secdiul  count  charged  him  with  having  uttered  and  jml)- 
Ilulied  U!)  true  a  forged  and  counterfeited  indorsement  <jf  said 
tlnift,  purporting  to  bo  the  indoraenient  upon  the  sanio  of  the 
name  of  said  (^alvin  Mullen. 

Tiie  defendant  moved  to  quash  each  count,  but  the  motion 
was  overruled.     Each  count,  it  .seeniH  to  us,  was  good. 

The  defendant  moved  to  re([uire  the  pro.secutor  to  elec*.  on 
which  count  he  would  j)Ut  the  defendant  on  trial,  but  the  motion 
,,118  overruled.  Doubtless  the  court  might,  in  its  discretion, 
have  required  the  election  to  have  been  made,  but  there  was  no 
error  in  refusing  to  do  so.    Jlcrshoii  v.  The  State,  51  Ind.,  1-1. 

On  the  trial,  there  was  a  general  verdict  of  guilty,  and  thede- 

femlunt  was  sent  to  the  state's  prison  for  tlie  term  of  cightyears. 

Several  reasons  were  stated  for  a  new  trial,  but  we  deem  it 

necessary  to  notice  one  only.     The  court  instructed  the  jury, 

amongst  other  things,  as  follows: 

"  If  it  is  shown  that  the  endorsement  is  forged,  and  that  the 
defendant  had  in  his  possession  and  passed  said  check,  with  the 
forged  indorsement  thereon,  the  presumption  arises  that  the  de- 
fendant nnule  the  indorsement,  and  unless  that  ])resumption  is 
explained  and  rel)utted,  it  will  be  suflicient  evidence  to  warrant 
you  in  coming  to  the  conclusion  that  the  defendant  made  such 
indorsement.*' 

The  cliarge  thus  given  was  radically  wrong.  The  draft  or 
hill  of  exchange,  being  indorsed  by  the  payee  in  blank,  would 
pass  from  liand  to  hand  by  delivery,  without  any  further  indors- 
nient,  so  as  to  vest  the  title  in  each  successive  holder.  The 
count  charging  the  defendant  with  having  uttered  and  published 
the  forged  indorsement  as  true,  necessarily  contained  the  allega- 
tion that  the  defendant  knew  the  indorsement  to  have  been  forged 
at  the  time  he  uttered  and  published  it  as  true.  2  G.  &  II.,  446, 
sec.  30.  The  scienter  is  a  necessarv  ingredient  of  the  oft'enso 
charged  in  the  second  cotmt,  and  the  allegation  must  be  suj)- 
ported  by  competent  evidence. 

Now,  it  might  happen  that  a  bill,  thus  apparently  indorsed  by 
the  payee  in  blank,  might  pass  through  innocent  hands,  and  it 
cannot  be  law  that  each  person  through  whose  hands  such  a  bill 
might  pass,  the  indorsement  turning  out  to  be  forgery,  is  to  bo 


!i 


00,0 


AMERICAN  CRIMINAL  REPORTS. 


{-■in 


i'  i 


presumed  ^;/'/»i«  facle^  to  have  made  tlie  forged  iiulorscinent. 
If  tlie  instruction  be  correct,  then  it  follows  that,  while  on  a 
charge  of  uttering  and  publishing  as  true  .any  such  forged  in- 
dorsement, a  party  could  not  be  convicted  without  averment,  and 
proof  of  the  aeicntti',  yet  he  might  be  convicted  on  a  charge  of 
the  forgery  of  the  indorsement  without  any  other  proof  than  the 
mere  uttering  and  publishing  as  true  of  the  forged  indorsement. 

"We  do  not  think  it  can  be  laid  down  as  a  rule  of  law  that  the 
uttering  and  publishing  as  true  of  a  commercial  instrument, 
with  the  name  of  the  ]'ayee  forged  thereon,  raises  a  ])rosuni])- 
tion  that  the  i)erson  uttering  and  publishing  is  guilty  of  forginjf 
the  indorsement.  On  a  charge  of  the  forgery  of  the  name,  the 
uttering  and  publishing  are  circumstances  to  be  considered  by 
the  jury,  with  auy  other  evidence  bearing  on  the  (question  of  the 
forgery,  and  what  weight  shall  be  given  to  the  uttering  and  puh- 
lishiug  is  to  be  determined  by  the  jury,  in  the  same  manner  as 
they  determine  the  weight  of  other  evidence  in  criminal  cases. 

The  judgment  below  is  reversed,  and  the  cause  remanded  for 
a  new  trial. 

The  clerk  will  give  the  proper  notice  for  a  return  of  the  pris- 
oner. 


PouTEU  vs.  Statk. 

(51  Ga.,  300.) 

Gaming:     Things  of  ralue. 


Chips  and  checks  rodoemable  in  money  by  the  dealer  at  a  gambling  table  are 
things  of  value,  within  the  meaning  of  a  statute  against  gaming. 

McCay,  J.  The  statute  makes  gaming  to  consist  of  playing, 
etc.,  "  for  money  or  other  thing  of  value."  AVhy  are  not 
"checks,"  "chips,"  and  things  of  this  character,  just  as  much 
things  of  value  as  bank  notes?  They  are  both  of  them  only  the 
representatives  of  value.  If  a  check  is  good  when  presented  to 
the  banker  or  dealer  for  twenty-iive  cents  or  one  dollar,  accord- 
ing to  its  stipulated  value,  we  are  unable  to  see  how  it  fails  to 
come  within  the  statute,  any  more  than  if  the  keeper  ol"  the  bank 
had  written  his  formal  promise  to  pay,  or  the  bet  had  been  for  as 
much  money  as  the  check  or  chip  re])reseut8.    In  fact,  that  is 


STATE  I'.  HENDERSON. 


233 


the  truth  of  the  case.  Tlie  bet  is  really  for  money,  and  the 
clieck  is  merely  to  aid  in  keeping  the  account  as  well  as  for  con- 
venience. 

■\Ve  suspect  this  case  is  only  brought  here  for  delay,  and  not 
really  to  test  the  legality  of  the  conviction,  and  we  are  sorry  we 
are  not  able  to  add  to  the  penalty  fixed  by  the  judge,  for  this 

trilling  with  the  public  t'-ibunals. 

Judgment  affirmed. 


State  vs.  IIexdkkson. 

(47  Ind.,  127.) 
Gaming  :    Belting  on  election. 
Betting  "pon  the  result  of  an  election  is  not  gaming. 

OsBOKX,  J.  This  case  is  brought  here  under  section  119,  2 
G.  &  II.,  420.  The  point  reserved  was  the  ruling  of  the  court 
upon  the  sufficiency  of  the  second  paragraph  of  the  answer  filed 
by  the  appellee. 

The  bill  of  exceptions  shows  that  the  appellee  was  indicted  by 
the  grand  jury  of  Morgan  county,  for  betting  and  wagering 
upon  the  result  of  the  election  of  governor  in  18T2;  that  he  ap- 
peared and  filed  an  answer  of  two  paragraphs.  The  second 
alleged  "  that  before  the  indictment  was  by  said  grand  jury  found 
or  presented,  said  grand  jury  caused  the  defendant  to  be  duly 
subpoenaed  before  them,  to  testify  as  a  witness  to  the  facts  and 
matters  alleged  in  said  indictment;  and  that  he  was  by  said 
grand  jury  then  and  there,  before  the  finding  or  presenting  of 
said  indictment,  com])elled  to  testify,  and  did  testify,  as  a  wit- 
ness in  said  cause,  and  then  and  there  to  disclose  as  such  witness 
all  the  facts  and  matters  alleged  in  said  indictment,  and  to  prove 
the  said  oft'ense  charired  in  the  said  indictment." 

To  this  paragrajdi  the  state  demurred,  on  the  ground  that  it 
(lid  not  state  facts  suflicient  to  constitute  an  answer.  The  de- 
murrer was  overruled,  and  the  state  excepted,  and  reserved  the 
point  of  law  for  the  decision  of  this  court.  A  replication  in 
denial  was  then  filed,  and  the  cause  Wi<s  submitted  to  the  court 
for  trial,  who  found  the  appellee  not  jruilty  on  the  defense,  as 
stated  in  the  second  paragraph  of  the  answer. 


li 


234 


AMERICAN  CRIMINAL  REPORTS. 


'  m  I 


,i  I, 


The  paragraph  of  the  answer  in  question  was  predicated  npou 
section  89,  2  G.  &  II.,  410,  which  provides,  that  any  person 
called  as  a  witness  to  testify  against  anotlier  for  gaming  is  a 
competent  witness  to  prove  the  olfense,  although  he  may  have 
been  concerned  as  a  party,  and  is  compelled  to  testify  as  other 
witnesses,  but  he  shall  not  be  liable  to  indictment  or  punishment 
in  any  such  case. 

In  our  opinion,  the  answer  is  bad.  To  exempt  a  person  from 
prosecution  or  punishment  on  the  ground  that  he  has  been  com- 
pelled to  testify  as  a  witness,  under  section  SO,  si/jn'ci,  it  must 
appear  that  he  was  compelled  to  testify  against  another  for  gam- 
ing. This  answer  shows  that  the  ap])ellee  was  compelled  to  tes- 
tify touching  a  wager  on  the  result  of  an  election,  and  not  to 
prove  the  ofiense  of  gaming.  Betting  upon  the  result  of  an 
election  is  not  gaming;  an  election  is  not  a  game.  WoodcocI:  i: 
JIcQueoi,  11  Ind.,  14;  McIIatton  v.  Bates,  4  Blaekf.,  63. 

In  our  opinion,  the  decision  of  the  court  below  overruling  the 
demurrer  to  the  second  paragraph  of  the  answer  was  erroneous. 

As  this  court  is  not  authorized  to  reverse  a  judgment  of  ac- 
quittal in  a  criminal  prosecution,  the  judgment  of  the  said 
Morgan  circuit  court  is  affirmed,  at  the  costs  of  the  appellee. 

Judgment  affirmed. 


State  vs.  Book. 

(41  Iowa,  550.) 

Gamisg  :    Playing  billiards  —  Keeping  gambling  house. 

Under  a  statute  which  provides  that  to  "  play  at  any  game  for  any  sura  of  raonfy 
or  other  property  of  vahie"  is  gambling,  playing  at  billiiu-ds  wheiv  the 
loser  pays  for  the  game  is  gambling. 

The  owaier  of  a  billiard  table  which  is  used  with  his  knowledge  and  consent  for 
playing  billiards,  on  an  uudiTstanding  between  the  players  that  the  losor 
shall  pay  for  the  game,  is  guilty  of  keeping  a  gambling  house. 

Miller,  C.  J.  The  evidence  shows  that  the  defendant  kept  a 
place,  as  charged  in  the  indictment,  where  persons  resorted  fur 
the  purpose  of  playing  games  of  billiards,  j)in  pool,  etc.,  and 
where  the  defendant  also  kept  cigars  and  drinks  for  sale;  that  it 
was  the  custom  or  habit  of  jiersons  resorting  to  this  place,  to 
play  billiards  and  pin  pool,  "  and  the  losing  party  to  pay  for  the 


STATE  V.  BOOK. 


235 


game;"  the  price  of  pin  pool  was  five  cents  a  cue,  and  billiards 
twenty  cents  a  game.  Sometimes,  too,  the  man  that  got  beat 
wonkl  treat.  Tlie  evidence  also  leaves  no  doubt  of  the  fact  that 
the  defendant  knew  the  games  of  billiards  and  pin  pool  were 
played  in  the  manner  the  evidence  shows;  in  other  words,  that 
it  was  usual,  in  fact  universal,  for  them  to  play  those  games  with 
the  agreement  or  understanding  that  the  loser  should  pay  for  the 
games,  and  that  they  were  in  fact  so  played. 

I.  Tlie  court,  among  other  things,  charged  the  jury  that  if 
they  found  the  above  enumerated  facts,  they  would  be  author- 
ized to  find  the  defendant  guilty  under  the  indictment. 

It  is  urged  by  counsel  for  appellant  that  these  facts  do  not 
constitute  the  crimes  charged  in  the  indictment.  In  other 
words,  that  playing  the  game  of  "])in  pool"  with  the  agreement 
that  the  l()sing  party  shall  ])ay  for  the  game,  and  he  did  so  in 
fati.,  is  not  gambling,  and,  therefore,  to  suffer  such  playing  in 
a  house  or  place  under  the  control  or  cai"0  of  the  defendant,  does 
not  constitute  the  crime  charged. 

The  statute  provides  that  to  "  play  at  any  game  for  any  sum 
of  money  or  other  property  of  any  value"  is  gambling.  (Code, 
sec.  402S.)  Now,  it  is  clearly  shown,  and  not  disputed,  that  the 
defendant  kept  certain  tables  on  which  divers  persons  were  in 
the  habit  of  playing  at  what  is  called  the  game  of  "  pin  pool." 
That  this  play  is  a  '''■game^^  there  is  no  dispute,  and  there  is  no 
controversy  about  the  fact  that  for  the  use  of  the  tables  and 
otlier  instruments  of  the  game,  the  defendant  charged  and  re- 
quired the  player  to  ])ay  a  certain  sum  of  money  for  each  cue 
(whatever  that  is).  "When,  therefore,  two  or  more  persons  played 
this  game,  they  became  jointly  or  severally  bound  to  pay  the 
sum  or  sums  of  money  c'largeable  therefor.  It  is  plain  that  if 
they  play  the  game  or  games  in  order  to  determine  which  of  the 
players  shall  pay  the  entire  sum  or  sums  which  they  would  be 
jointly  or  severally  bound  to  pay,  they  ])lay  for  the  sum  each  one 
would  be  bound  to  pay,  and  it  does  not  change  the  matter  that 
tliey  play  the  game  in  advance  of  paying  therefor.  The  princi- 
ple is  the  same  as  if  the  money  had  been  staked  or  put  up  be- 
fore the  game  was  played.  It  is  gambling  in  the  one  case  as 
M'ell  as  in  the  other.  Nor  is  it  any  Iciss  gambling  that  the  sum 
of  money  played  for  is  small.  To  "  play  at  any  game  for  any 
sum  of  money,"  however  small,  comes  within  the  statute. 


i 

230 


AMERICAN  CRIMINAL  REPORTS. 


ilv!      U 


II 


This  view  is  sustained  by  The  State  v.  Leiyliton,  3  Foster  (X. 
II.),  167;  mid  Ward  v.  The  State  of  Ohio,  17  Ohio  St.,  32, 
both  cases  being  precisely  in  point.  In  the  former,  the  kuriied 
judge  delivering  the  opinion  of  the  court  says:  "  The  defend- 
ants made  a  profit  from  the  xise  of  the  billiard  tables;  for  tlic 
'hire  '  of  them  they  were  paid  a  shilling  a  game.  The  persuus 
who  resorted  there  jdayed  for  the  hire.  In  substance  they  played 
for  a  shilling  a  game.  The  loser  paid  and  the  winner  received 
the  sum.  IJy  an  understanding  among  the  players,  the  money 
was  to  be  a])plied  towards  defraying  tlie  expenses  of  the  tables; 
but  still  it  was  money  won  at  play  svnd  upon  the  chances  of  jday." 
The  same  doctrine  is  held  also  in  the  case  last  cited.  Li  llar- 
laxujh  V.  The  People,  etc.,  40  111.,  294,  and  Blewltt  v.  The  State 
of  Jfk.'^t.s.sipjyi,  34  Miss.,  GOO,  a  contrary  doctrine  is  held  under 
the  statute  of  those  states.  Under  our  statute,  m'c  deem  the 
former  the  correct  view,  and  that  any  difl'erent  construction  would 
not  be  warranted. 

II.  After  the  jury  had  been  out  for  some  time,  they  came  into 
court  and  submitted  to  the  court,  in  writing,  the  following  (pies- 
tion : 

"Judge  Heed:  "Will  you  state  for  our  information  if,  iu  tak- 
ing the  surro-unding  circumstances,  such  as  JJook's  ])rescuce 
while  the  games  were  being  played,  and  receiving  the  money, 
we  should  col^clude  that  he  knew  how  the  games  were  being 
played  and  played  unlawfully,  should  we  find  him  guilty  in  con- 
nection with  this  cvidence'if  II.  M.  Cook,  7''o;v//^<«/<." 

"Which  the  court  answered  as  follows: 

"  If  you  find,  from  the  evidence,  that  ]>arties  who  jdayed  ou 
defendant's  billiard  tables,  in  his  place  of  business,  did  so  with 
the  understanding  that  the  loser  should  pay  to  defendant  the 
amount  charged  all  the  members  of  the  party  for  the  use  of  the 
table,  and  tha':  the  defendant  knew  that  they  were  playing  under 
such  arrangement,  and  perinitted  them  so  to  play,  you  should 
find  the  defendant  guilty." 

The  objection  urged  to  this  instruction  is,  that  it  directs  the 
jury  as  to  the  force  or  effect  of  the  evidence.  "W^e  do  not  so 
understand  it.  It  simply  tells  the  jury  that  if,  "from  the  evi- 
dence," they  find  certain  fa  ct9,  then  they  should  find  the  defend- 
ant guilty.  There  was  no  error  iu  the  instruction  in  this  respect, 
nor  in  any  other,  as  we  have  already  seen. 


CONYERS  V,  STATE. 
The  judgment  of  the  district  court  will  be  affirmed. 


237 


TsoTT..  — People  v.  Scn-geant,  8  Cow.  (N.  Y.),  139,  is  also  an  authoiity  that 
playing  at  billiards,  where  the  loser  pays  for  the  game,  is  not  gambling. 


■i 

l^ 

j  i'i| 

1i 

■ 

l' 

1 

t 

n 

1 

F 

CoNYERS  VS.  State. 
(50  Ga.,  103.) 
Permitting  minor  to  play  billiards  ivithoiif  consent  of  guardian  —  Burden  of  proof. 

On  the  trial  of  an  indictment  for  pennitting  a  minor  to  play  billiards  without 
the  consent  of  his  parents  or  guardi.m,  the  burden  of  proof  is  on  the  state  to 
show  tiiat  the  minor  thd  not  have  tlu;  consent  of  his  parents  or  guardian. 

McCay,  J.  Whilst  it  is  certainly  true,  as  a  general  rule,  that 
iiiS  burden  of  proof  is  upon  the  party  who  holds  the  affirmative 
of  a  proposition,  yet  there  are  many  instances  in  which  a  con- 
trary rule  obtains.  Our  code,  ,'873,  section  37r8,  declares  that 
"if  a  negation  or  negative  affirmation  is  essential  to  a  ])arty's 
case,  the  proof  of  such  negative  lies  upon  the  ])arty  affirming 
it."  The  test  is,  Does  the  negative  form  an  essential  ingredient 
in  the  thing  sought  to  be  established?  Does  the  mind  fail  to 
agree  to  the  proposition  insisted  on,  so  long  as  the  negation  re- 
mains unproven?  If  so,  the  proposition  is  not  made  out,  and 
the  party  asserting  the  negation  must  prove  it. 

In  criminal  cases,  the  law  requires  that  the  state  shall  prove 
all  the  essential  facts  entering  into  the  description  of  a  crime, 
and,  except  in  a  very  few  special  cases,  the  defendant  cannot  be 
put  upon  his  defense,  until  the  state  has  shown  affirmatively 
every  such  act.  In  Elklns  v.  The  State,  13  Ga.,  435,  this 
court  lays  down  the  rule  very  broadly,  and  asserts  that  whatever 
18  made  by  the  statute  an  essential  part  of  the  offense,  must  be 
set  out  in  the  indictment  and  proven  by  the  state.  The  want  of 
consent  by  the  parent  or  guardian  is  the  very  gist  of  tliis  crime. 
It  is  not  unlawful  for  men  to  play  billiards.  It  is  not  unlawful 
even  for  minors  to  play,  if  their  parents  or  guardians  consent. 
The  want  of  the  consent  is  the  very  essence  of  the  offense.  There 
is  a  class  of  negations  which  it  is  almost  impossible  to  prove  af- 
firmatively. Where  the  field  to  be  covered  by  the  evidence  is  so 
broad  as  that,  the  burden  would  be  intolerable  upon  the  public, 


1;    i^ 


;.l 


238 


AMERICAN  CRIMINAL  REPORTS. 


to  afford  the  time  necessary  for  hearing  this  proof,  as  wliero  it  is 
only  j)0ssible  to  prove  that  one  was  not  present,  by  examining  a 
large  number  of  persons  who  did  not  see  him,  or  where  the 
proof  that  one  did  not  do  a  thing  can  only  be  establislied  by 
proof  following  him  from  movement  to  movement,  thi-oiiirh  a 
considerable  time.  But  there  are  negations  that  are  just  as  ea- 
sily proven  as  an  affirmative,  as  where  thenegatioTi  dejiends  ii]H)U 
a  moment  of  time  and  a  particular  place,  or  is  within  the  knowl- 
edge of  a  single  person.  In  the  former  class,  even,  the  general 
rule  that  the  proijecutor  in  criminal  cases  must  jirove  all  tlio  in- 
gredients of  the  crime,  has,  in  some  cases,  been  relaxed.  As 
in  prosecutions  under  the  English  game  laws,  where  one  may 
kill  game  if  he  has  one  of  a  large  nunxber  of  qualifications,  it 
has  been  held  that  it  was  not  necessary  for  the  crown  to  go  to 
expense  and  the  public  to  sufl'er  the  inconvenience  of  ])roviMg 
the  absence  of  each  of  the  required  qualifications,  esjieeially 
(and  this  is  perhaps  the  true  point  on  which  the  exception  turns) 
if  the  facts  lie  peculiarly  in  the  defendant's  knowledge. 

This  was  the  holding  of  the  court  in  The  King  v.  Tamer,  5 
Mau.  &  Sel.,  200,  and  it  seems  to  have  been  followed  in  1  Ry.  k 
Moo.,  159;  1  Car.  &  P.,  508,  and  by  several  other  Eiiglisli  and 
many  American  cases,  though  it  is  certainly  true  that  tlie  old  cases 
even  on  the  game  laws,  are  different.  2  Ld.  Raym.,  1415;  1  Stra., 
497;  2  Com.,  525;  I  T.  E.,  125;  1  East,  613;  1  id.,  G39,  and  tlio 
courts  have  not  always  kept  in  mind  the  distinction  between 
cases  where  the  negative  is  part  of  the  description  of  the  oU'ense, 
and  where  it  is  by  provision  of  a  subsequent  section  or  by  a 
subsequent  act;  3  Dev.,  299;  3  B.  Mon.,  342;  34  ]\[e.,  293;  12 
Barb.,  26;  X.  II.,  8.  Our  own  court  has  made  the  exception  in 
the  case  of  an  indictment  for  retailing  sjiirituous  liquors 
without  license.  In  the  case  of  Sharj>  v.  The  State,  17  Ga., 
290,  this  court  held  that  if  the  selling  of  spirituous  liquors 
was  proven,  the  omis  was  shifted  to  the  defendant,  and  that 
it  was  not  necessary  for  the  state  to  prove  the  want  of  license. 

This  is  a  strong  case,  for  tho  want  of  the  license  is  a  ])art  of 
the  description  of  the  offense.  We  are  free  to  say  that  we  do 
not  think  the  reasoning  of  the  court  in  that  case  very  sound, 
since  it  is  said  there  that  by  his  plea  of  "  not  guilty  "  tlie  de- 
fendant admits  the  selling,  and  asserts  that  he  has  license  —  a 
line  of  reasoning  which  is,  as  it  seems  to  us,  untrue,  since  tho 


CONYERS  V.  STATE. 


239 


plea  of  not  guilty  denies  the  whole  charge.  But  the  case  may 
be  sustained  on  another  ground,  and  by  authority.  The  license 
is  a  written  authority  to  the  dealer  to  sell,  and  the  presumption 
is  that  he  has  it  in  his  possession.  It  is  peculiarly  within  his 
knowledge.  The  negative  cannot  be  shown  conclusively  by  the 
state.  It  could  only  \)e  proven  that  no  such  license  was  recorded ; 
but  the  defendant  might  have  the  license  and  be  not  guilty, 
tliougli  the  license  was  not  recorded.  All  the  proof  in  thepoioer 
of  the  state  would  be  inconclusive,  to  wit:  that  no  such  license 
was  issued.  The  license  is  In  writing,  and  cannot  be  proven  by 
parol,  and  it  is  in  the  defendant's  possession,  if  it  exists,  and  on 
this  ground  there  are  many  cases  making  this  special  crime  an 
exception  to  the  general  rule.  Sec  the  cases,  both  English  and 
American,  above  referred  to  in  1  IJennett's  Criminal  Cases,  and 
notes,  306,  310;  though  there  are  many  cases  of  high  authori- 
ty to  the  contrary;  2-1  Pick.,  380,  and  the  cases  there  cited. 
But  undoubtedly  the  general  rule  is  that  in  criminal  cases  the 
burden  of  showing  all  the  facts  necessary  to  uial-.e  out  the  de- 
fendant's guilt  is  upon  the  state. 

In  rape,  the  proof  must  show  that  the  act  was  against  the  will 
of  the  female.  In  robbery,  that  the  taking  was  against  the  con- 
sent of  the  person  robbed;  in  larceny  from  the  jierson,  that  the 
taking  was  without  the  knowledge  of  the  possessor  in  the  case; 
opprubious  words,  that  they  were  iinjyrovokcd,  and  in  the  vari- 
ous acts  of  trespass  against  property,  as  cutting  wood,  etc.,  on 
another's  land,  that  they  were  without  the  owner's  consent.  The 
books  are  full  of  illustrations  of  the  position  we  have  asserted, 
to  wit:  that  if  in  order  to  make  the  defendant  guilty,  it  be  neces- 
sary to  show  a  negative  the  burden  of  showing  it  is  upon  the 
state.  Harvey  v.  Toivars,  i  Eng.  L.  &  E.,  531;  2faij  v.  The 
State,  i  Ala.,  as  when  the  defendant  was  indicted  for  keep- 
ing a  grey  hound,  not  being  a  person  qualified.  1  Str.,  60. 
In  the  same  volume  is  a  case  for  profane  swearing,  under  the  act 
of  G  and  7  AVill.  III.  The  act  put  a  penalty  of  one  shilling  upon 
a  servant,  and  two  shillings  on  every  other  person.  The  con- 
viction was  quashed  because  it  was  not  proven  that  the  defend- 
ant was  not  a  servant.  So  in  Jitw  v.  Allen,  1  !Moo.  C.  C,  ISi, 
and  Jit,''  V.  [iodijers,  2  Camp.,  634,  in  an  indictment  for  killing 
deer  on  the  ground  of  another  without  his  consent,  it  was  held 
that  the  prosecution  must  prove  the  want  of  consent.    See,  also, 


2i0 


AMERICAN  CRIMINAL  REPORTS. 


2  Greenl.,  22S;  2  Car.  &  P.,  45;  2  Jones  (X.  C.)  270;  where 
the  doctrine  is  discussed.  See,  also,  10  East,  211,  where  it  was 
liekl  that  tlie  burden  was  on  the  crown  to  show  that  the  defend- 
ant had  not  tak«^n  the  sacrament.  In  5  llich.,  57,  that  a  prac- 
ticing pliysician  had  no  license;  that  one  was  not  (qualified  to 
vote:  9  Met.,  2S0. 

The  case  at  bar,  we  think,  comes  within  the  general  rule.  The 
consent  of  the  parent  is  not  reipiired  by  the  statute  to  be  in  wri- 
ting,  and  does  not,  therefore,  as  in  the  case  of  license  to  sell,  lie 
peculiarly  within  the  knowledge  of  the  defendant.  That  the 
consent  was  not  given  is  as  well  known  to  the  parent  or  guardi- 
an as  it  is  to  the  defendant.  AV^e  are,  for  these  reasons,  of  the 
opinion  that  the  conviction  was  wrong,  under  the  proof.  There 
■was  no  evidence  of  the  want  of  consent,  and  this  was  a  material 


ingredient  in  the  offense  charged. 


Judgment  reversed. 


i '  ^^^ 

ZooK  VS.  State. 

(47  InJ.,  403.) 
Gaming  :    ludictmeut. 

Under  a  statute  which  pvohihits  tlie  keeper  of  a  Itilhard  tn.ble  from  allowing  a 
minor  to  plaj'  ou  it,  tiiul  inflicts  a  fine  for  each  yame  allowed  to  he  plnyoil, 
an  indictment  which  docs  not  allejre  that  a  game  was  played,  or  luiine  tin' 
person  with  whom  t'le  minor  played,  or  give  any  rejison  for  not  nainiii^' 
him,  is  had,  on  a  motion  to  quash. 

Pettit,  J.  This  was  an  indictment  for  allowing  a  minor  to 
play  billiards,  in  violation  of  the  following  section  of  the  statute, 
Acts  of  1873,  p.  30: 

"  Sec.  1.  That  if  any  person  owning,  or  having  the  care,  man- 
agement or  control  of  any  billiard  table,  bagatelle  table  or  pii,'eon 
liole  table,  shall  allow,  suffer  or  permit  any  minor  to  play  bil- 
liards, bagatelle  or  any  other  game  at  or  upon  such  table  or 
tables,  he  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon 
conviction  thereof,  shall,  for  each  game  so  allowed,  suffered  or 
permitted  to  be  played,  be  fined  in  any  sum  not  less  than  five 
dollars,  nor  more  than  fifty  dollars." 

A  motion  to  quash  this  indictment  was  overruled,  and  ex- 
ceptions taken ;  and  this  ruling  is  assigned  for  error. 


EX  PARTE  LE  BUR. 


241 


The  objections  uri^ed  to  tlic  indictment  are,  that  tlie  person 
with  wlioni  the  minor  played  billiards  is  not  named,  nor  is  any 
reason  or  excuse  given  for  not  naming  him;  and  that  the  indict- 
ment does  not  show  or  charge  a  game  was  played. 

This  indictment  is  not  specific  and  certain  in  contemplation 
of  livw,  so  as  to  enable  the  defendant  to  prej^are  for  his  defense, 
because  it  does  not  name  the  person  with  whom  the  minor 
playeil,  and  a  conviction  on  this  indictuient  would  not  be  a  bar  to 
another  indictment  charging  that  the  minor  played  with  a  per- 
son named. 

The  statute  makes  it  penal  to  allow  a  minor  to  play  a  game. 
The  indictment  does  not  charge  or  show  that  the  minor  did  or 
was  allowed  to  play  a  game.  We  hold  that  the  objections  to  the 
indictment  are  well  taken.  2  G.  &  II.,  410,  412;  QuIidiv.  The 
State,  35  Ind.,  485;  W/iitnei/  v.  The  State,  10  id.,  404;  lite 
State  V.  JlcC'on/iicl;  2  id.,  o05;  The  State  v.  JVoIand,  29  id., 
il'2.  Many  other  cases  are  cited,  both  in  this  and  other  states, 
to  sustain  the  position  taken,  but  we  deem  it  nunecessary  to  re- 
fer to  them. 

The  indictment  is  bad,  for  not  alleging  that  a  game  was  played, 
and  in  nut  naming  the  ])erson  with  whom  it  was  played,  or  giving 
a  reason  why  ho  was  not  named. 

Tlie  judgment  is  reversed,  with  instructions  to  sustain  the 
motion  to  (juash  the  indictment. 


'^f- 

'  >■-''      i.iK' « 

11 

m 

:t 

mm 

^ 

■  ■■         1 

i 

ill 
'i 

Ex  Paktk  Lk  Bur. 
(49  CiU.,  159.) 

Habeas  Coiii'us. 

FeiUral 2)n$oiH'r  in  isfatt'  jirison. 
A  person  who  litis  been  convicted  of  a  crime  against  the  United  States  by  a 
fedenil  court,  and  confined  in  the  prison  of  the  state  with  the  consent  of  the 
state,  is  deemed  to  be  in  tiae  custody  of  the  federal  authorities. 

liekase  offedoral  prisoners  h;/  state  cotiiis. 
The  courts  or  judges  of  the  state  have  no  aiithority  to  release  a  prisoner  upon  a 
habcaD  corpus,  when  the  prisoner  is  in  the  custody  of  tlie  authorities  of  the 
United  States,  pursuant  to  a  judgment  of  conviction  by  a  federal  tribunal  of 
exclusive  jurisdiction  in  the  case. 

Ai'M.icATioN  to  ]Mr.  Chief  Justice  "Wallace  to  be  discharged 
on  haheas  corjnis,  from  imprisonment  in  the  state  prison  of  the 
state  of  California. 
Vol.  I.- 16 


iwm 


242 


AMERICAN  CRIMINAL  REPORTS. 


The  return  of  Tlamnaldo  Paclicco,  warden  of  the  state  prison, 
shows  that  in  the  year  1SC8,  the  prisoner  was  convicted  in  thecir- 
enit  court  of  the  United  States  for  the  district  of  Ore^'on,  of  the 
crime  of  aiding  or  being  accessory  to,  and  of  robbing  the  Uiiiteil 
States  mails,  and  sentenced  to  be  imprisoned,  at  hard  labor,  fdr 
the  term  of  ten  years;  that  the  prisoner  is  detained  by  the  said 
Paclicco.  under  and  in  pursuance  of  certified  coi)ies  of  the  jiulg. 
nient  and  order  of  commitment,  and  of  a  certiHed  cojiy  t)f  a  mes- 
sage from  the  Hon.  O.  11.  Browning,  secretary  of  the  interior, to 
the  United  States  marshal  for  the  district  and  state  of  Orciroti, 
designating  the  state  prison  of  California  as  the  place  of  contiiie- 
iiu'tit,  and  ordering  the  marshal  to  remove  the  prisoner  to  tlie 
state  prison  at  San  Quentin.  The  judgment,  after  naming  tlie 
tvrm  of  confinement  as  above  stated,  concluded  with  this  order: 

"  It  appearing  to  the  court  that  there  is  no  law  of  the  state  of 
Oregon  authorizing  persons  sentenced  to  be  imprisoned  by  this 
court,  to  be  confined  in  the  ])enitentiary  of  the  state,  it  is  ordered 
that  the  sentence  of  imprisonment  herel>y  imposed  u])on  the  de- 
fendant 1)0  executed  by  imprisoning  him,  for  the  term  aforesaid, 
in  the  county  jail  of  Multnomah  county,  in  the  state  aforesaid, 
until  further  order." 

The  commitment  recited  the  order  in  the  judgment,  and  direct- 
ed the  marshal  to  deliver  the  ])risoner  "  to  the  keeper  of  tlie 
county  jail  of  said  county  of  IMultnomah,  in  the  state  aforesaid, 
there  to  be  safely  kept  by  him,  the  said  keeper,  in  close  coiiiine- 
nient  until  he  be  discharged  by  due  course  of  law,  or  until  fur- 
ther order." 

The  telegraphic  message  from  the  secretary  of  the  interior  was 

as  follows: 

"  Wasutngtox,  March  j,  iS6g. 

"  Received  at  Portland  March  3,  ISO'J  — t)  A.  M. 

"To  AujKiiT  ZiKiiKR,  Marshal  TJ.  S.: 

"Transport  to  California  penitentiary  *  *  AVilliam  Lc 
Bur,     *     ^'  (Signed)  C).  11.  Bkowning,  Scn-etary:' 

The  copies  of  the  judgment,  order  of  commitment,  and  tele- 
gram, were  certified  by  the  clerk  of  the  court. 

F.  M.  P'uietj,  for  petitioner: 

The  return  docs  not  show  any  authority  for  detaining  the  pris- 
oner. The  warden  is  the  agent  of  the  state,  not  of  the  United 
States,  and  it  appears  by  the  judgment  and  the  order  of  connnit- 


"m!^ 


EX  TARTE  LE  BUR. 


243 


ment,  that  the  prisoner  was  ordered  to  be  confined  in  the  county 
jail  of  MiiltnoiuiUi  county,  Ore^'on,  "until  further  order."  That 
ineiuis  until  further  order  of  the  court,  for  the  power  to  desig- 
imte  the  ]>l!iec  of  confinement  is  a  judicial  function,  and  the  des- 
ii'iiation  of  the  place  is  a  necessary  part  of  the  sentence,  as  much 
so  as  the  fixing  of  the  term.  The  secretary  of  the  interior,  being 
an  executive  otiicer,  l»as  no  power  to  change  the  place  of  impris- 
uiiinent  desigiuited  by  the  court.  Xo  order  was  ever  made  by 
tlie  court  removing  the  ]irisoner  to  this  state,  and,  therefore,  ho 
is  not  lawfidly  detained  here.  But,  if  the  secretary  of  the  inte- 
rior be  held  to  luive  the  power  to  change  the  place,  there  is  no 
evidence  that  he  has  done  so,  for  the  telegram  is  not  authenti- 
cated by  the  seal  of  the  secretary's  office,  nor  certified  by  any 
one  having  authority  to  attest  its  authenticity. 

Walter  Van  Dyke^  United  States  District  Attorney,  for  re- 
spondents: 

A  state  court  cannot  issue  the  writ  of  haheas  corpus,  where 
the  party  imprisoned  is  in  custody  nnder  the  authority  of  the 
United  States.  If  he  is  wrongfully  imprisoned,  the  federal  tri- 
bunals alone  can  release  him.  Ableiiian  v.  Booth  atul  the  Uni- 
tcd  States,  21  How.,  U.  S.,  506. 

The  prisoner  is  in  the  custody  of  the  respondent  under  the  au- 
thority of  the  United  States.  The  telegram  of  the  secretary  of 
liie  interior  is  sufficient  to  autlu»rize  the  imprisonment  of  the 
prisoner  by  the  respondent.  It  is  of  necessity  without  a  seal,  for 
such  a  message  cannot  be  transmitted  with  a  seal.  The  secre- 
tary has  authority  to  designate  places  of  confining  prisoners. 
2  Bright.  Dig.  of  U.  S.  Laws,  p.  1(54,  sec.  56;  id.  p.  183,  sec.  55. 

The  power  of  designating  the  place  is  an  executive  function 
merely,  not  judicial.  AVhen  the  sentence  is  passed  by  the  court, 
its  power  over  the  prisoner  is  exhausted,  and  all  that  remains  is  to 
execute  the  sentence.  That  must  be  done  by  executive  officers. 
To  hold  that  the  place  cannot  be  changed  without  an  order  of  the 
court,  would  be  to  render  executive  officers  powerless  to  act  in 
cases  of  emergency,  such  as  fires. 

Wallace,  C.  J.  The  prisoner  is  detained  in  custody  by  the 
authorities  of  the  government  of  the  United  States,  by  virtue  of 
the  judgment  rendered  by  the  United  States  court  in  Oregon, 
and  it  is  not  claimed  that  the  term  of  his  imprisonment  has  ex- 


844 


A.Mi;ilICAX  CUIMINAL  RKPOKT.S. 


pired.  The  circuiiistancu  that  lie  is  Imitrii^oned  at  tlio  state  prison 
and  ill  the  kcL'j)iii^  of  its  warden,  is  of  no  iinport  in  this  ivjnect 
for  tlieso  ai'o  but  tlio  aj^encios  and  moans  of  his  conHnunient, 
adopted  hy  tlie  United  States  by  the  consent  of  the  state. 

The  petitioner  being  a  ]»risoner  held  by  the  authorities  of  Iho 
govtsrnnient  of  the  United  States,  by  virtue  of  the  judgment  of 
a  federal  court  of  exclusive  jurisdiction  in  the  case,  it  U  iiiv 
duty  under  the  statutes  of  the  state  to  remand  him.  I'erial  Codu, 
sec.  USO. 

It  is  there  provided  that  if  the  time  during  which  a  party  may 
be  legally  detained  in  custody  has  not  expired,  he  must  be  iv- 
manded  if  he  appear  to  be  detained  in  custody  '•  by  virtue  of 
process  iss.ued  by  any  court  or  judge  of  the  United  States,  in  a 
case  where  such  court  or  judge  has  exclusive  jurisdiction."' 

In  Alleiaaii  v.  Booth, '11  How.,  U.  S.,  523,  the  (juestioii  of  the 
power  of  the  state  courts  to  deal  with  jjcrsons  detained  as  the 
petitioner  is,  was  discussed  by  Mr.  Chief  Justice  Taney  with  his 
accustomed  fibility,  and  it  was  there  held  that  when  the  rotuni 
to  the  writ  is  made,  and  the  state  court  or  judge  is  judicially  up. 
prised  that  the  i)arty  is  in  custody  under  the  authority  of  the 
United  States,  they  can  proceed  no  further.  "  They  then  kiiuw,"' 
says  the  chief  justice,  "that  the  ])risoner  is  witl.  ii  the  domin- 
ion and  jurisdiction  of  another  government,  and  that  neitl 
writ  of  /t  a /mi  (s  CO  >'j)  us  nor  any  other  process  issued  uik.  .,o 
authority  can  pass  over  the  line  of  division  between  the  t\,  hiv- 
ereigiities.  He  is  then  wiJiin  the  domain  and  exclusive  juri- 
diction  of  the  United  Statot;.  If  he  has  committed  an  otiense 
against  their  laws,  their  tribunals  alone  can  punish  him.  If  lie 
is  wrongfully  imprisoned,  their  judicial  tribunals  can  release 
him  and  attbrd  him  redress." 

The  petitioner  must  be  remanded,  and  it  is  so  ordered. 


Wright  vs.  Picople. 
m  Mich.,  300.) 
Assault  with  Intent  to  Muiider:     Writlen  verdict  construed  — rraelke. 

In  a  prosecution  for  assault  with  intent  to  murder,  the  jury  brought  in  the  fol- 
lomng  writt^^n  verdict:  "We  find  the  prisoner,  John  D.  Wrij^iit,  guilty  of 
assault  with  intent  to  kill  'William  Wagner,  as  charged  in  the  information; 


:-,;.  :*': 


Wni(;iIT  r.  PKOPLK. 


849 


also,  thnt  tlic  Hliootinjjf  done  liy  Writ,'lit  whm  done  imdiT  ^m-nt  provocation, 
niul  \vi' would  rcconniifnd  Wm:  iirisonor  to  tlic  nicrcy  of  tlic  court."  The 
jii(l),"'.  lift''!"  ri'iidiiijr  flic  vi'i'dict  iiloud,  said,  "yon  find  tlio  priHorn'r  jjuilty 
iw  fliiuy:i'd  ill  tlir  inforiuiilioii,"  to  which  the  jury  nodded  assent;  and  tiio 
verdict  so  given  wits  recordeil  \\h  ii  gi'iieral  verdict  (if  yuilty,  and  the  jary 
discliarp'd.  On  these  facts  it  was  A(77,  that  the  findinj,' of  the  jury  couhl 
not  he  construeil  as  a  findinj;  that  the  pri-onr-r  was  truilty  of  imythintr  mom 
tliiui  iis.saiilt  and  hattery,  and  that  the  pntiy  of  tlio  general  verdict  of  guilty 
ill  the  record  was  unauthori/.ed. 

Kuijoit  to  St.  Cldii'  Circuit. 

Wriirlit  was  tried  ojj  w  cliariLifi!  of  iissaiiU  witli  intent  to  miiriler 
one  W(  (i<l\vanl,  alids  AVa^ner.  at  I'ort  lliiivm.  The  jiuy,  liav- 
iiig  receiviMl  tlio  oliarj^e  of  the  court,  retired  in  clisirj^e  of  an  ofH- 
cer,  and  sliortly  afterward:^  returned  into  court  fo^  further  in- 
stnictioM  as  to  whether  the  ]>risoner  couhl  he  convicted  under 
the  iiii'iiiin.'ition  of  assault  and  battery.  Tlie  diarj^e  heinj^  a<^aiu 
read  to  tlieiu  (which  distinctly  instructed  them  that  if  the  kill- 
injr,  in  case  death  liad  residted,  would  have  been  anvthirif'  less 
tlmii  murder,  the  defendant  was  not  guilty  of  the  complete 
oilense  cliar<ijcd,  but  was  at  most  icuilty  of  assault  and  battery 
only,  and  that  he  might  be  convicted  of  that  otl'ense),  they  again 
retired.  At  about  two  o'clock  in  the  morning  the  jury  again 
' "tiivMed  into  court,  and  being  asked  if  they  had  agreed  npon 
tiicir  verdict,  the  foreman  handed  to  the  clerk,  and  the  clerk 
liaiii''d  to  the  judge,  a  jiapcr,  which  the  judge  thereupon  read 
all  .  and  then  said  to  the  jury:  "Gentlemen,  you  say  that 
yon  tind  the  prisoner  guilty  as  charged  in  the  information,  and 
that  you  recommend  him  to  tlie  mercy  of  the  court;  and  so  say 
yon  all;"  to  which  the  jury  nodded  assent;  and  the  verdict  so 
ftiveii  was  recorued,  and  the  jury  discharged.  The  paper  which 
the  jury  handed  in  contained  in  writing,  signed  by  all  the  jurors, 
the  following:  "We  find  the  prisoner,  John  D.  Wright,  guilty 
of  assault  with  intent  to  kill  AVilliam  AVagner,  as  charged  in  the 
information;  ai  >  that  the  shooting  done  bv  Wriijlit  wag  done 
nnder  great  provocation,  and  we  would  recommend  the  prisoner 
to  the  mercy  of  the  court."  The  court  sentenced  him  to  be  im- 
prisoned in  the  state  prison  for  seven  years. 

Atkinson  Bros,  and  A.  E.  C/i(idioiel\  for  plaintiff  in  error. 

A.  R.  Avery,  Prosecuting  Attorney,  A.  J.  Smith,  Attorney 
General,  and  W.  T.  Mitchell,  for  the  people. 

The  court  held  that  the  written  finding  of  the  jury  must  con- 


1 1 


240 


AMERICAN  CRIMINAL  RErORTS. 


trol  under  the  circum3t<aiices  disclosed  l)y  this  record  as  to  wliat 
their  re;  1  verdict  was;  that  there  beiii<,'  no  Rticli  offense  under 
our  statures  a?  an  assault  with  intent  to  kill,  the  statutory  otienje 
being  an  assault  with  intent  to  connnit  the  crime  of  nuiriler 
this  written  verdict  cannot  be  construed  as  a  finding  that  defend- 
ant  was  guilty  of  anything  more  than  an  assault  and  batterv; 
and  that  the  sentence,  therefore,  was  one  not  authorized  by  the 
verdict. 
Judgment  reversed,  and  prisoner  discharged. 


Smith  vs.  State. 
(.52  Gil.,  88.) 
Assault  ■w^ith  Istent  to  Mluuku:    Sufficiency  of  evidence. 

On  an  indictnieiit  for  assault  with  intent  to  nmrcior,  where  the  evidence  sliowcil 
aijimn-el,  in  which  the  prosecutor  struck  tho  respondent  in  tlie  f.irc,  tlio  re- 
spondent then  going  to  the  house  and  coniin<;  out  with  two  yuns,  and  tliiiu 
the  prosecutor  then  advtuiced  towards  the  respondent  with  threateuui};  ges- 
tures, taunting  him  to  shoot,  when  the  respond"nt  shot,  and  that  the  lucvir- 
cutor  was  a  nuich  more  powerful  n;au  than  the  prisoner,  it  was  /((/(/,  lliut  if 
death  had  ensued  it  woukl  not  have  been  murder,  and  the  charge  was  not 
sustained. 

In  assault  with  intent  to  murder,  every  ingredient  of  nmrder  must  In;  prisi  nf. 
except  death,  and  where  if  death  had  resulted,  the  offense  would  have  beiu 
manslaughter  and  not  murder,  the  diargc  is  not  made  out. 

Tom  Smitu  was  placed  on  trial  for  the  offense  of  assault  witli 
intent  to  murder,  alleged  to  have  been  committed  on  the  per  '>n 
of  one  Arthur  Jackson,  on  the  10th  of  May,  1873. 

The  defendant  pleaded  not  guilty.  The  evidence  for  the  state 
made,  in  brief,  the  following  case: 

Sam.  Hunter  and  Steve  Cody  were  playing  marbles  in  the 
road,  and  Arthur  Jackson  was  seated  on  the  fence  looking  on, 
when  defendant  came  uj).  lie  said  to  Jacksor*  that  he  wanted  to 
bite  his  ears  like  he  used  to  bite  them.  Jackson  rejdied  that  he 
should  do  no  such  thing.  Defendant  said,  "Damn  you,  1  will 
bite  them  anyhow."  At  the  same  time  he  Jumped  on  Jack?(iii 
and  endeavored  to  bite  his  cars.  Jackson  pushed  him  off.  Ih' 
then  grabbed  at  Jackson,  scratching  his  face,  causing  the  blood 
to  flow.    Jackson  said  that  if  a  num  played  with  him,  he  did  not 


^1  f  '^^T^fSf^flPl^lfl 


'-,  X,  ■ 


SMITH  v.  STATE. 


2iT 


want  liim  to  tear  the  blood  out,  and  to  go  off  and  let  hi  in  alone. 
Defendant  replied,  "  By  G-d,  may  be  you  don't  like  it,  and  if 
you  don't,  YOU  need  not  take  it."  Jackson  told  him  to  go  ott' 
from  him.  lie  advanced  on  Jackson  again,  saying  he  would 
bite  liis  oars  some,  and  pulled  him  oft'  the  fence.  Jackson  caught 
liim  by  the  breeches  and  turned  him  over  the  fence  backwards. 
He  carried  Jackson's  hat  over  with  him.  Milton  Gill,  w'"o  was 
standing  hy,  said,  "  Jackson,  if  you  don't  mind,  you  will  break 
that  nigger's  neck."  Jackson  said  to  defendant  that  he  did  not 
intend  to  let  him  fall  so  hard,  and  asked  him  if  he  was  hurt. 
He  said  he  was  not.  Jackson  asked  him  to  hand  his  hat  over. 
Defendant  said,  "  AVait,  damn  3'ou,  let  me  hit  you  first."  lie 
then  handed  the  hat  over,  cotemporaneouslv  hitting  Jackson  in 
the  eve.  Ho  then  jjot  over  the  fence  and  caught  Jackson  around 
the  neck,  who  said  to  him,  "Smith,  you  ain't  no  man,  go  away; 
I  could  whip  you  with  a  hickory."  lie  replied  that  it  was  a 
'•G-d  d — d  lie,  by  G-d."  Jackson  said,  "  Smith,  a  man  give  me 
the  damned  lie  in  Covington  this  morning,  and  I  hate  for  a  man 
to  keep  on  giving  n»e  the  damned  lie  in  cold  blood."  Here- 
plied  that  ''it  was  r.  G-d  d--d,  h-11  fired  lie,  by  G-d,  and  if  you 
don't  like  it,  you  need  not  take  it."  Jackson  slapped  his  face. 
He  said,  ''  Jncksou,  arc  you  mad?"  Jackson  replied  that  he  was 
not.  lie  then  said,  "  Stay  here  till  I  come  back."  He  left  and 
went  home,  which  was  ahout  two  hundred  and  fifty  yards  from 
the  place  where  they  were  scuffling.  Jackson  moved  away  from 
the  fence  and  sat  down  in  the  road.  After  the  lapse  of  ten  or 
fifteen  miinites,  he  heard  the  defendant  hollo,  "  Clear  the  way, 
you  women  and  children,  by  G-d.''  He  was  about  fifty  yards 
from  Jackson,  aiid  had  two  double  barreled  shot  guns.  Jackson 
jumped  u])  and  told  him  to  shoot,  that  nobody  was  afraid.  lie 
placed  the  gun  which  he  had  in  his  right  hand  against  the  near- 
est paling,  and  took  the  other  one  from  his  shoulder.  Jackson 
said,  "iShoot  ahead,  here's  your  mule,"  and  at  the  same  time 
stepped  to  the  side  of  and  between  the  palings.  The  defendant 
fired.  Jackson  returned  to  the  center  of  the  road  and  asked  him 
what  he  meant.  lie  replied,  "  I  mean  to  shoot  you,  G-d  d-n 
you."  Jackson  said,  "Shoot  quick,  for  I  am  coming  to  you," 
at  the  same  time  advancing  on  him.  When  Jackson  was  within 
thirtv  vards  of  him  a  second  shot  was  fired,  the  shot  strikinc: 
Jackson  on  the  right  side.    Jackson  told  him  to  shoot  again,  as 


I  :  .'  ■  ■ 


I 


'f. 


1 1  '11 


2i8 


AMERICAN  CRIMINAL  REPORTS. 


lie  Avas  coming  at  him.  The  defendant  threw  down  the  empfv 
gun  and  took  the  other  and  half  cocked  it.  Jackson  was  ad- 
vancing on  him  so  fast  that  he  pulled  the  trigger,  but  the  g\m 
would  not  go  oft',  lie  cocked  it  again,  but  by  tliis  time  Jackson 
had  reached  him,  and  struck  the  muz^cle  of  tliegnn.  Il  went  off 
and  the  shot  lodged  in  his  head.  The  last  shot  also  struck  his 
left  arm.  lie  seized  the  gun  in  his  right  hand  and  struck  attlie 
defenda:;t's  head.  Tlie  blow  missed  his  head,  struck  the  gnmiul, 
and  broke  the  gun  in  pieces.  Jackson  had  a  switch  in  liis  liaml 
at  the  commencement  of  the  difficulty,  about  as  large  as  liis 
thumb,     lie  threw  it  down  in  tlie  road. 

The  evidence  for  the  defense  did  not  materially  alter  the  case 
made  by  the  state.  It  tended  to  show  that  .Tackson  was  very 
violent  in  his  conduct  to  defendant  before  the  shooting,  and  tliat 
he  commenced  advancing  upon  the  defendant  as  soon  as  ho  saw 
him  with  hh  gun,  telling  him  to  shoot,  and  that  all  three  shots 
were  fired  under  these  circumstances.  Alt^o,  that  when  Jackson 
struck  at  the  defendant  with  the  gun  he  did  not  miss  him,  but, 
on  the  contrary,  cut  his  liead  very  badly. 

Tlie  jury  returned  ■-;  verdict  of  guilty.  The  defendant  inoved 
for  a  new  trial,  because  the  verdict  was  contrary  to  the  law  and 
the  evidence.  The  motion  was  overruled,  and  defendant  ex- 
cepted. 

If.  D.  Ci'pens,  by  J.  J.  Floi/d,  for  plaintift"  in  error. 

T.  B.  Cahnniss,  Solicitor  General,  by  Peejdts  and  IJowcU, 
for  the  state. 


Tuii'PE,  J.  It  has  been  so  often  decided  as  to  what  the  evi- 
dence must  show,  to  sustain  a  conviction  for  the  oftense  of  an 
assault  -with  intent  to  murder,  that  it  is  unnecessary  to  do  more 
than  merely  to  reiterate  it  here.  Had  death  ensued  from  the 
assault,  from  the  circumstances  of  the  killing,  the  defendant 
would  only  have  been  guilty  of  manslaughter;  he  then  cannot  he 
guilty  of  an  assault  with  intend"  to  murder,  when  there  is  no  kill- 
ing. All  the  ingredients  of  vuirder,  except  the  killing,  enter 
into  and  arc  necessary  to  constitute  the  crime  of  assault  with  in- 
tent to  murder.  At  least,  there  must  be  malice,  express  or  im- 
plied, that  would  make  the  assailant  a  murderer,  had  he  taken 
life  in  the  assault.  If  there  cannot  be  murder  without  malice, 
there  cannot  be  an  intent  to  murder  unless  the  same  element  of 


W-fr 


BARCUS  V.  STATE. 


malice  appears.  Ileeks  v.  The  State,  51  Ga.,  429,  and  Jaclson 
V.  The  State,  id.,  402.  As  this  case  goes  back  for  another  trial, 
tlie  testimony  will  not  be  discussed  here,  further  than  to  say  that 
the  record  shows  that  the  defendant  had  stopped  and  put  down 
his  i,'mis  when  the  prosecutor  started  towards  him,  with  threat- 
eriiiiii;  invitations  to  shoot;  that  he  was  coming;  to  shoot  quick; 
that  lie  wiv  coming  to  him,  etc.,  etc.  The  defendant  seems  to 
have  been  but  a  weakling  compared  to  the  prosecutor,  who  had 
already  shown  his  complete  power  to  do  as  he  might  please  with 
defoiuhuit.  Tlie  evidence  for  the  defense  coi'taiidy  makes  out  a 
case  that  would  not  have  been  murder  had  the  defendant  killed 
the  prosecutor,  and  it  could  scarcely  have  been  worse  nnder  the 
prosecutor's  own  statement,  if  what  he  says  about  the  first  liring 
l»e  stricken  out.  As  to  that  tiring,  it  does  not  appear  that  tho 
dcfeiulant  shot  at  the  prosecutor,  or  in  what  direction  he  did  fire. 
It  is  ))robable  he  did  fire  at  him,  but  the  prosecutor  says  "  ho 
stepped  to  the  side  of  and  behind  the  paling.-:."  This  was  before 
the  liring.  The  defendant  was  fifty  yards  off;  some,  and  most 
of  the  witnesses,  made  it  a  good  deal  farther.  The  ]irosecutor 
then  spraTig  out,  rushed  towards  the  defendant  with  the  threat- 
ening (loclarations,  and  with  the  efibrt  tt)  do  great  violence  to 
defendant  when  he  reached  him.  It  was  under  these  circum- 
stances the  other  firing  took  place.  ]>ut  the  matter  will  be 
passed  on  again  by  a  jury,  and  no  further  comment  on  the  testi- 
mony will  be  made. 

Jiuhjment  reversed. 


W  ! 

■ 

1 

IP 

Baucus  vs.  State. 

(49  Miss.,  17.) 

AssAUi/r  WITH  Intknt  to  SIuiideu:    Intoit. 

Where  the  evklcMict;  showed  tliiit  tlio  n'spoi'.dt'iit  shot  at  A.  intending  to  kill 
iiim,  but  missed  him  and  iK't'ldcntiiUy  hit  IJ.,  a  l>y-stander,  it  was  held,  that 
lie  was  not  pii'ty  <>f  assault  witli  intent  to  commit  murder  on  B. 

hitont  luay  \n)  iiiferrt.-d  from  tiio  act,  but  tiicri!  is  no  artiticial  rule  of  hiw  which 
r(?quuvs  or  idU)ws  a  i>art'.euhir  intent  tt)  be  presumed  fi'om  ^iven  facts,  where 
till'  undisputed  evidence  shows  tliat  no  sucli  intent  was  in  fact  entertained. 

In  assault  with  iiitiuit  to  munler,  there  umst  be  an  intent  to  kill  the  person 
assaulted. 

Takbkll,  J.     At  tho  last  March  term  of  the  circuit  court  of 


250 


AMERICAN  CRIMINAL  RErORTS. 


Warren  county,  tlic  jjlaintiff  in  error  was  indicted,  tried  and  con- 
victed on  a  cliur^e  of  sliooting  at  Sandy  Mitchell  with  intent  to 
kill.  From  the  judgment  against  him  the  accused  prosecuted  a 
writ  of  error,  and  asks  here  a  reversal  of  that  judgment  upon 
several  grounds  not  essential  to  repeat  or  diccuss.  Upon  the 
trial,  the  right  of  the  city  ])olice  to  arrest  vagrants,  without  war- 
rant, was  nnule  a  ])rominent  point,  and  is  again  pressed  in  tlie 
argument  in  this  court,  but  we  do  not  think  that  questiuu  in- 
volved at  present.  There  is  a  fatal  error,  however,  in  tliis  case, 
and  it  is  this:  There  is  no  evidence  that  the  accused  sliot  at 
Sandy  Mitchell.  The  proof  is,  that  he  shot  at  Henry  Creijflitoa, 
and  according  to  his  own  declarations  subsef^uent  to  the  shoutinj;, 
intended  to  kill  him.  Upon  this  point  there  is  no  conlliot  in  the 
evidence.  It  is  positive  and  uncontradicted,  that  he  sliot  at 
Henry  Creighton,  accidentally  hitting  Sandy  Mitchell,  an  inno- 
cent by-stander.  The  verdict  is  wholly  unsu])ported  hy  the 
evidence.  It  is  true,  that  the  jury,  in  response  to  the  instruction 
for  the  state  have  found,  in  substance,  that  the  accused  shot  at 
Sandy  Mitchell  with  the  intent  to  kill  and  murder  him;  hut  tlie 
verdict  must  have  been  through  some  misapprehension  of  law  or 
fact.  There  is  no  doubt  of  the  rule,  that  a  man  shall  he  pre- 
sumed to  intend  that  which  he  does,  or  which  is  the  natural  and 
necessary  conscijuence  of  his  act;  and  that  malice,  in  tliis  class 
of  cases,  nniy  be  presumed  from  the  character  of  the  weapon 
used.  If  the  evidence  in  the  case  at  bar  was  limited  to  the  mere 
fact  of  shootiui;  and  the  strikinnr  of  Mitchell  as  the  resnlt  of  the 
shot,  or  if  the  evidence  as  to  the  person  intended  to  be  killed  was 
conflicting,  we  might  accept  the  verdict  as  conclusive;  hut  the 
record  befcire  us  leaves  no  question  or  doubt.  Indeed,  it  is  con- 
clusive that  Creighton  and  not  Mitchell  was  the  person  ainiotl  at 
and  designed  to  be  hit.  To  sustain  the  indictment  in  this  ciise,  it 
was  incumbent  on  the  part  of  the  state  to  prove  that  the  aceui^ed 
shot  at  and  intended  to  kill  jMitchell,  whereas  the  j>roof  is  that 
he  shot  at  Creighton  with  the  intent  to  kill  him.  The  essential 
averments  of  the  indictment  are,  therefore,  not  only  not  sns- 
tained,  but  absolutely  negatived.  It  follows  that  the  indictment 
should  have  charged  the  shooting  to  have  been  at  Creighton,  and 
the  result  is,  the  judgment  must  be  reversed  and  the  indictment 
quashed,  but  the  accused  cannot  be  set  at  liberty.  He  will  be 
detained  in  custody  to  await  a  trial  under  another  indictment,  to 


STATE  V.  UNDEllWOOD. 

be  drawn  as  herein  indicated.     13  S.  &  M.,  242;  11  id.,  317;  24 
Miss.,  54;  Code,  §  2497. 

Jud'Tinent  reversed,  and  cause  remanded,  with  a  recommenda- 
tion to  tlie  district  attorney  to  quash  this  indictment,  and  in- 
Btructions  to  tlie  proper  authorities  to  detain  the  accused,  subject 
to  the  action  of  the  circuit  court  of  "Warren  county. 

Jiuhjment  reversed. 


State  vs.  Undeuwood. 
(.57  Mo.,  40.) 


Homicide  :  Change  of  venue — Discretion  —  Degrees  of  murder — Self  defense  — 
Defense  of  propeiii/  —  Presence  of  respondent  during  argument  of  in- 
icrlocutori/  motion  —  Seclusion  of  jury. 

Under  a  statute  regrilatiiig  chiMinros  of  venue,  one  section  piwidos  that  no  se- 
cond change  of  venue  shall  be  luul.  Another  section  provides  that  a  change 
of  venue  shall  be  had  when  the  judge  has  been  of  counsel  in  the  cause. 
Where  in  a  change  of  venue  the  cause  was  removed  to  a  circuit  where  the 
judge  had  been  of  counsel  in  the  cause,  it  wiis  held  that  a  second  change  of 
venue  wa.s  properly  had,  not\vithstanding  the  provision  of  the  section  first 
mentioned. 

Whether  or  not  a  co-respondent,  indicted  as  an  accessory,  shall  be  fii-st  tried  so 
that  his  testimony  may  be  had  for  the  defense  en  the  trial  of  the  principal, 
is  a  matter  in  th.e  discretion  of  the  trial  court,  and  the  supreme  comi  Avill 
not  review  tl'.e  exercise  of  thai  cUscretion  where  there  is  no  evidence  that  it 
hiis  been  abused. 

On  a  trial  for  homicide  it  appeared  that  at  the  time  of  the  kilhng,  the  deceased 
was  engaged  ui  moving  a  line  fence  between  liimself  and  respondent.  It 
appeared  also  that  the  fence  had  been  built  by  and  belonged  to  deceased, 
but  that  it  had  been  built  on  respondent's  land :  Held,  that  respondent  had 
no  right  to  resort  to  violence  to  prevent  deceased  removing  the  fence,  and 
that  evidence  as  to  the  respective  rights  of  the  piu'ties  to  keep  the  fence 
where  it  Wius  was  in-elevant  and  inadmissible. 

Wiere  th(!  jury  finds  the  respondent  guilty  of  murder  in  the  firat  degi'ce,  under 
instnictions  properly  defining  murder  in  the  first  degree,  it  seems  that  re- 
spondent would  not  be  prejuiliced  by  an  er'-^neous  instniction  aa  to  murder 
in  the  second  degree. 

Where  the  evidence  shows  that  respondent  killed  deceased  with  a  gun  loaded  by 
powder  and  bullets,  the  law  presumes  the  killing  to  be  mtentional,  and  that 
it  is  murder  in  the  second  degree,  in  the  absence  of  proof  to  the  contrary, 
and  it  devolves  upon  the  defendant  to  show  from  the  evidence  m  the  cause, 
to  the  reasonable  satisfaction  of  the  jury,  that  he  is  guilty  of  a  less  crime, 
or  that  he  acted  in  self-defense. 

In  cases  of  homicide,  if  circumstances  of  wilfulness  and  deliberation  are  not 


'  k ';  1 


I 


1  s 


t  Si 


fiMMi;.- 


1 .   • 


III 


t  i 


252 


AMERICAN  CRIMINAL  RErORTS. 


proved,  the  law  presumes  the  Idlling  to  be  murder  in  the  second  degree 
only. 

One  who  seeks  and  briups  on  a  difficulty  cannot  shield  himself  undoi  the  ploa 
of  .si'lf-defeiisc,  however  inuuinent  the  danger  in  which  ho  finds  himself  m 
the  progress  of  an  atlVay. 

It  is  not  nccessaiy  that  ronpoiident  should  be  present  in  court  durijig  tlie  argu- 
ment of  a  motion  for  a  new  trial,  if  he  is  present  when  it  is  finiiUy  deter- 
mined. 

After  the  jurj'  had  retired,  two  witnesses  necessarily  passed  tlirougli  the 
juiT  room  to  get  down  stairs,  but  witiiout  any  communication  with  thejuiy; 
Jlihf,  no  gi'ound  tor  setting  aside  tlie  verdict. 

The  atfidavits  of  jurors  are  receivable  in  support  of  theii-  verdict  to  show  that 
nothing  improper  occurred  during  theii*  consultation. 

'Wagxkk,  J.  Tliis  was  an  iiulictment  for  imirder  in  tlielirst 
degree,  fonnil  in  the  Ealls  connty  circuit  court  against  the  de- 
fendant and  six  others,  for  the  killing  of  one  Ilicliard  !Monifce. 

Tlie  defendant  was  charged  as  principal  in  the  first  degree, 
and  the  others  were  charged  as  being  jircsent,  aiding,  abetting 
and  assisting  in  the  murder. 

Upon  the  application  of  the  defendants,  a  change  of  venue  was 
granted  to  the  circuit  court  of  Macoii  county,  and  when  the  case 
was  called  for  trial,  a  new  judge  having  in  the  meantime  been 
elected,  who  had  jn-eviously  heen  of  counsel  for  defeiulaiits,  ii 
suggestion  of  that  fact  being  made,  the  case  was  sent  to  Marion 
connty,  in  another  judicial  circuit,  for  trial. 

When  the  case  was  called,  the  attorneys  prosecuting  fur  tlie 
state  announced  themselves  ready  for  trial,  and  the  defeiulaiit 
and  Samuel  Scobee,  who  was  included  in  the  indictment  as  a  co- 
defendant,  moved  for  a  separate  trial.  Scobee  asked  that  ho 
might  be  first  tried,  and  defendi>  it  demanded  that  Scobee  should 
be  first  tried,  alleging  that  he  vrntedtho  testimony  of  Scobee  to 
be  xised  on  his  trial.  The  circuit  attorney  then  moved  that  the 
defendant  be  first  tried,  as  he  stood  charged  as  ]»riiicii)al  in  the 
first  degree,  and  Scobee  was  only  charged  with  aid  :ig  and  abet- 
ting. The  court  sustained  this  motion,  and  ordered  the  prosecu- 
tion to  ])roceed  against  the  defendant,  and  to  this  ruling  ex- 
ceptions were  duly  saved. 

It  seems  that  the  difficulty  between  Menifee,  the  deceased,  and 
the  defendants  in  the  indictment,  had  its  origin  in  the  removal 
of  a  fence  which  separated  the  farms  of  the  respective  ])arties. 
The  true  line  was  not  accurately  fixed,  but  enough  was  known  to 
render  it  certain  that  the  fence  was  placed  upon  the  land  of  the 


STATE  r.  UNDERWOOD. 


253 


TJnclenvoods,  the  defendants.  IMenifee  had  built  the  fence  and 
it  belonged  to  him,  and  at  the  time  the  homicide  was  committed 
he,  with  his  brother,  was  in  the  act  of  removing  it  and  putting 
it  upon  his  own  land.  To  this  defendants  objected,  as  it  would 
expose  their  crops.  Defendant  and  Menifee  had  had  some  diffi- 
culty the  evening  before,  and  on  the  morning  of  the  murder, 
Menifee  brought  a  shot-gun  with  him  when  he  went  to  his  work 
in  tearing  down  and  rebuilding  the  fence. 

Tlie  niiiin  witness  for  the  ])rosecution  was  the  brother  of  the 
deceased,  who  was  assisting  him  at  the  time.  lie  says  that  while 
they  were  staking  otl'  the  line,  he  looked  out  and  saw  two  men, 
defendant  and  Scol)ee,  and  when  they  saw  witness  and  the  de- 
ceased, defendant  started  towards  them,  and  then  stopped  and 
made  a  motion  to  Scobee  to  go  west;  Scobee  got  on  his  horse  and 
went  in  that  direction,  and  defendant  went  south  towards  Ste- 
phen Underwood's  (his  father's)  house.  The  work  continued, 
and  in  a  short  time  Stephen  Underwood  came,  and  he  said  to  the 
deceased  that  the  boys  were  not  going  to  let  him  move  that  fence. 
Deceased  then  said  there  was  a  legal  way  to  stop  them  from  mov- 
ing tlie  fence,  and  the  old  man  -aid  he  wotild  see  as  soon  as  he 
could  got  the  boys  and  their  arms.  Stephen  Underwood  then 
went  towards  his  house.  Witness  and  deceased  then  went  to 
another  portion  of  the  fence  and  commenced  tearing  it  down, 
when,  ill  about  half  r,n  hour  after  Stephen  Underwood  left,  he 
returned,  and  upon  looking  up  witness,  told  his  brother  that  he 
saw  Stephen  Underwood,  AVilliam  Underwood,  Strother  Under- 
wood, Wesley  Underwood  (defendant),  Frank  Underwood,  Asa 
Underwood,  and  Samuel  Scobee.  They  were  about  a  quarter  of 
mile  otl"  when  he  lirst  saw  them.  Scobee  and  Strother  Under- 
wood were  coming  from  the  west  until  they  got  to  his  brother's 
fence,  and  then  they  came  up  the  fence.  Stejihen  and  Frank 
Underwood  were  coining  up  the  fence  from  the  south;  the  other 
three  were  coming  up  about  twenty  steps  from  the  fence.  The 
old  man  ordered  witness  to  stop  tearing  down  the  fence,  but  he 
kept  on.  They  then  had  an  altercation  between  themselves. 
Defendant  Wesley  Underwood  started  from  the  edge  of  some 
plowed  ground  opposite  llichard  Menifee,  tlie  deceased,  with  his 
gun  presented  towards  him,  in  a  position  to  shoot;  Richard  then 
picked  up  his  gun;  both  fired;  the  shots  were  so  near  together 
that  witness  could  not  tell  which  fired  first.     Richard  was  shot 


254 


AMERICAN  CRIMINAL  REPORTS. 


Hi. .  ■  . 


and  fell;  lie  then  raised  himself  up  on  his  knees  and  shot  again. 
The  Underwoods  then  ran  towards  him  and  were  shootiiiif  and 
beating  him.  AVitness  heard  some  three  or  four  sliots.  Some 
had  sticks,  some  guns  and  some  pistols;  saw  some  three  or  four 
blows,  could  not  tell  how  many.  The  deceased,  after  he  was 
shot  down,  was  repeatedly  struck  with  a  gun,  on  his  breast,  neck 
and  head,  and  died  in  a  short  time  thereafter.  The  shots  were 
mortal.  There  was  no  other  eye  witness  on  the  part  of  the  state, 
but  there  was  corrobor  itive  evidence  as  to  the  number  of  shots, 
etc.,  by  those  who  were  working  in  the  immediate  neighborhooil. 

William  Collins  was  a  witness  for  the  state,  and  he  testified 
that  he  lived  within  less  than  a  quarter  of  a  mile  of  Steplien  Un- 
derwood, and  he  explained  the  situation  of  his  farm  and  the 
Underwood  and  Menifee  farms,  and  stated  in  his  testimony  tliat 
the  Underwoods  had  joined  on  his  fe?.ce  without  permission. 
To  this  testimony,  as  to  Underwood's  joining  witness'  fence  with- 
out permission,  defendant's  counsel  objected,  and  the  conrt  sus- 
tained the  objection;  but  the  evidence  was  given  in  a  narrative 
form,  and  the  remark  was  made  before  the  witness  cuiild  l)e 
stopped. 

For  the  defense,  Mrs.  Amanda  Scobec,  wife  of  Samuel  Scobee 
and  sister  of  the  defendant,  stated  that  on  the  morniuir  of  the 
murder  she  started  out  to  the  field,  and  saw  her  hu.sband  and 
Strother  Underwood  riding  in  the  direction  of  where  ^^Eenifee 
was  tearing  down  the  fence,  and  that  she  went  on  uj)  to  the  fence 
and  was  within  thirty  or  forty  rods  of  where  Menifee  and  de- 
fendant fonght;  that  when  she  got  there  all  the  defendants  and 
Richard  and  John  ;^[enifec  were  there;  liichard  and  .lulin  were 
tearing  down  the  fence.  Slic  then  speaks  about  tlie  dilliciilt}' 
that  took  place  between  John  Menifee  and  her  father,  and  after 
that  Richard  Menifee  then  said:  "There  is  "Wesley  (defendant), 
and  by  God  I  will  kill  him,  anyhow,"  and  picked  up  his  double 
barreled  shot  gun  and  fired  at  Wesley  as  he  j)icked  uj)  liis  gun. 
Strother  said,  "For  God's  sake,  Dick,  don't  shoot."  J.)it'k  shot 
Wesley,  and  Wesley  shot  D!ck.  They  fired  two  shots  eacli; 
Dick  was  killed  and  AVesley  was  badly  wounded,  and  pulled  open 
his  shirt  and  said  he  was  killed. 

The  witness  then  testifies  vhat  she  and  her  husband  did  what 
they  could  to  administer  to  the  comfort  of  the  deceased  while 
he  lived,  and  in  the  continuation  of  her  testimony  she  says  that 


IH  h 


I'  vu 


STATE  V.  UNDERWOOD. 


255 


Dick  aiul  "Wesley  eaclihatl  a  double  barreled  shot  i^un;  that  there 
were  four  shots  fired  in  all,  and  tliat  after  the  tiriu<^,  AVesley  and 
Dick  came  together  and  clenched  and  fell.  .John  Menifee  then 
rftiiup  and  pulled  "Wesley  oil'  from  Dick;  Wesley  picked  up  a 
(run  and  turned  on  John  and  struck  him,  and  then  turned  on 
Dick  and  struck  him  several  times  with  the  gun.  Franklin  Un- 
derwood, another  brother  of  the  defendant,  testified  that  he  had 
been  at  home  sick,  and  was  in  the  house  when  Wesley,  the  de- 
fenilant,  came  and  got  his  gun,  and  said  the  Menifees  were  pull- 
iii<'  down  tlie  fence,  and  started  oft'  in  that  direction.  Witness 
then  put  on  his  coat  and  foUowed  after  him;  he  saw  the  whole 
encounter,  and  gives  essentially  the  same  version  of  it  that  Mrs, 
Scobee  does  in  her  testimony.  Some  other  evidence  was  intro- 
duced, which  was  unimportant.  The  defense  then  ottered  to 
prove  that  the  Underwoods  had  joined  their  fence  to  Menifee's 
with  tlio  latter's  permission.  Tliis  evidence  was  objected  to  by  the 
state,  and  the  objection  sustained. 

Fertile  state  the  court  gave  twelve  instructions;  the  sixth, 
eeventh  and  eighth  are  the  ones  objected  to  in  this  court. 

The  sixth  instruction  told  the  jury  that  if  the  defendant  killed 
Menifee  with  a  gun  loaded  with  powder  and  bullets,  the  law  pre- 
sumed the  killing  to  have  been  intentional,  and  it  was  murder 
in  the  second  degree  in  the  absence  of  proof  to  the  contrary, 
and  that  it  devolved  upon  the  defendant  to  show,  from  the  evi- 
dence in  the  cause,  to  the  reasonable  satisfaction  of  the  jury, 
that  ho  was  guilty  of  a  less  crime,  or  acted  in  self  defense. 

I>y  the  seventh  decliiration  the  jury  are  instructed  tliat  if  they 
believe,  from  the  evidence,  that  Itichard  Menifee  was  engaged  in 
pulling  down  his  fence,  and  that  the  defendant  came  to  where 
said  ]\Ienifee  was  at  work,  armed  with  a  loaded  gun,  for  the  pur- 
pose of  compelling  said  Menifee  to  desist  from  pulling  down  the 
fence  by  force,  and  approached  said  Menifee  in  such  a  manner 
as  to  give  ^lenifee  reasonable  cause  to  apprehend  a  design  on  the 
part  of  defendant  to  kill  him,  or  to  do  him  some  great  bodily 
harm,  unless  he  desisted  from  pulling  down  the  fence,  and  there 
was  reasonable  cause  to  apprehend  immediate  danger  of  such  de- 
sign being  accomplished,  then  the  killing  of  said  Menifee  by  de- 
fendant was  not  justifiable  homicide. 

The  eighth  instruction  tells  the  jury  that  if  they  find,  from  the 
evidence,  that  defendant  and  deceased  had  a  difliculty  which  re- 


r 


256 


AMEUICAN  CRIMINAL  REPORTS. 


im 


II 


suited  in  the  death  of  the  deceased,  and  that  defendimt  com. 
mcuced  the  diilicultj,  or  l)roii^i,dit  it  on  by  any  wilful  aiul  unlaw- 
ful act  of  hi.s,  committed  at  the  time,  or  that  he  voluntarily  uiulof 
Ills  own  free  will  and  incliiuition  entered  into  the  ditllculty,  then 
there  is  no  self  defense  in  the  cause,  and  they  shoidd  not  acimit 
on  that  <jfround;  and  in  such  cas^e  it  made  no  diflerence  how  im. 
minent  the  peril  mij,dit  have  l»een,  in  which  the  defendant  wis 
placed  during  the  difficulty.  There  is  aseci>nd  instruction  num. 
bercd  six,  which  told  the  jury  that  if  they  should  Hud,  iVuiu  tlie 
evidence,  that  liichard  Menifee  was  engaged  in  pulling  down  liis 
fence,  and  that  Wesley  Uiulerwood  came  to  where  said  Menifio 
was  at  work,  armed  with  a  loaded  gun,  for  the  purpose  of  cum- 
pelling  said  Menifee  to  desist  from  pulling  down  the  fence  by 
force,  and  approached  said  Menifee  with  his  gun  held  in  a  posi- 
tion to  shoot,  then  the  killing  of  said  Menifee  by  said  WcbIcj' 
Underwood  was  not  justifiable  or  excusable  homicide. 

On  the  ])art  of  the  defense,  the  court  instructed  the  jury:  First, 
that  defendant  had  a  right  to  carry  his  double-barreled  sliot-gnn, 
aiul  that  if  they  found,  from  the  evidence,  that  whilst  so  carrying 
it,  he  made  no  threat,  menace,  or  demonstratio'.i  to  shoot  Iticliiinl 
Menifee,  and  if  they  should  further  lind,  that  said  Menifee,  with- 
out being  threatened  by  defendant,  or  menaced  by  him  in  any 
liostile  manner  whatever,  ])icked  up  his  gun  and  declared  that  he 
would  kill  defendant,  and  then  and  there  presented  his  gun,  luad- 
ed  with  powder  and  bullets  or  shot,  at  defendant,  in  a  shooting 
l^osition,  then  in  such  case,  defendant  had  a  right  to  shoot  said 
Menifee  in  self  defense,  and  even  to  take  his  life  in  order  to  save 
his  own;  scco"dly,  that  if  the  jury  believed,  from  the  evidence, 
tl'iit  defendant,  at  the  time  he  shot  and  killed  liichard  ^[enifee, 
had  reasonalde  cause  to  apprehend  a  design  on  the  ])art  of  said 
liichard  Menifee,  to  commit  a  felony  upon  him,  or  to  do  him  some 
great  personal  injury,  and  that  there  was  reasoiuible  cause  to  ap- 
prehend immediate  danger  of  such  design  being  accomjilishcd, 
then,  in  such  case,  defendant  had  a  right  in  defense  of  his  own 
person  to  shoot  and  even  to  kill  the  said  Richard  Menifee,  uidess 
the  defendant  sought  and  provoked  the  difficulty;  thirdly,  tliat 
defendant  had  a  right  to  go,  either  alone  or  with  others,  to  the 
point  where  Richard  Menifee  and  his  brother  were  tearing  down 
the  fence,  for  the  purpose  of  remonstrating  with  them,  in  a 
peaceable  numner,  to  dissuade  them  from  pulling  down  the  fence, 


''    '■ '^'^t. 


I 


STATE  c.  UNDKRWOOD. 


2^7 


and  if  tlic  jury  Ijulieved,  from  tlie  evidence,  that  whilst  (Icfeinhint 
or  others  were  so  cii^ai^ed,  in  a  peaceable  niamicr,  reiuoiistratiiig 
acainst  the  tearing  away  or  removal  of  said  fence,  Richard  Men- 
ifee picked  up  his  gun,  loaded  with  jmwder  and  bullets  or  shot, 
declaring  that  he  would  hill  defendant,  and  then  and  there  pre- 
senteil  his  gun  at  defendant  in  a  hostile  manner,  then  defendant 
Imd  a  right,  in  the  necessary  defense  of  his  own  person,  to  shoot 
and  kill  the  said  llichard  Menifee,  and  the  jury  ought  to  lind  a 
verdict  of  ''not  guilty." 

The  jury  rendered  a  verdict  of  murder  in  the  first  degree,  and 
it  is  to  reverse  the  judgment  entered  therein  that  this  appeal  is 
presented. 

There  is  no  merit  in  the  point  raised,  that  the  second  change 
of  venue  was  improperly  granted,  and  that  the  circuit  court  of 
Marion  county  had  no  jurisdiction. 

Aside  from  the  fact  that  no  exceptions  were  taken  to  the  order, 
the  statute  settles  the  question  conclusively.  The  act  in  refer- 
ence to  criminal  practice  {'2  AVagn.  Stat.,  p.  1097,  §15)  provides 
that  when  any  indictment  or  criminal  i)rosecution  .shall  bo  pend- 
ing in  any  circuit  court,  the  same  shall  be  removed  by  the  order 
uf  such  court,  or  the  judge  thereof,  to  the  circuit  court  of  some 
county  in  a  difl'erent  circuit,  in  either  of  the  following  cases: 
First,  when  the  judge  of  the  court  in  which  such  case  is  pending, 
is  near  of  kin  to  the  defendant,  by  blood  or  marriage;  or,  second, 
when  the  offense  charged  is  alleged  to  liavc  been  committed 
against  the  person  or  jiroperty  of  such  judge,  or  some  person 
nea-  of  kin  to  him;  or,  third,  when  the  judge  is  in  anywise  in- 
terested or  prejudiced,  or  shall  have  been  counsel  in  the  cause. 
The  20th  section  of  the  same  act  declares  that  whenever  it  shall 
he  within  the  knowledge  of  a  court  or  judge,  that  facts  exist 
MJiich  would  entitle  a  defendant  to  the  removal  of  any  criminal 
cause,  on  his  application,  sxicli  court  or  judge  may  make  an  order 
for  such  removal,  without  any  application  by  the  party  for  that 
pur|wse.  And  although  the  27th  section  says,  that  in  no  case 
shall  a  second  removal  of  any  cause  be  allowed,  yet  this  court 
1ms  decided  that  a  second  change  of  same  may  be  granted  where 
the  judge  has  been  counsel  in  the  cause,  notwithstanding  the 
above  provision.  State  v.  Gates,  20  Mo.,  400.  It  is  true  that 
in  this  last  case,  the  judge  who  awarded  the  change  of  venue  had 
been  the  prosecuting  attorney,  but  that  makes  no  dift'ereuce,  as 
Vol.  I.  — 17 


vm- 


25S 


AMERICAN  CRIMINAL  RKl'ORTS. 


the  IStli  section  ap])lic8  justly  and  ])ri>porly  to  every  judge, 
wlietlier  he  has  heeii  counsel  for  either  the  plaintill'or  (loiVinliint, 

It  is  next  insisted,  that  Scohee  should  have  heen  first  tried,  i;i 
order  that  the  defendant  ini<^ht  have  had  his  testimony  ii[)()ii  tlm 
trial.  I'ut  upon  this  ]ioint  there  is  nothing  to  show  tliut  the 
court  exercised  its  discretion  unsoundly.  It  is  the  |tnicticc  in 
criminal  cases,  where  a  eodefendant  has  heen  included  in  the  in- 
dictment l>y  mistake,  or  facts  and  circumstances  are  shown,  liy 
which  it  is  apparent  that  no  verdict  of  j;'uilty  can  he  ohtuined 
against  liim,  to  allow  him  to  he  lirst  tried,  so  that  he  may  be  re- 
stored to  his  rights  as  a  witness.  The  exercise  of  this  jxAveris 
usually  called  forth  where  there  is  a  jttijit  trial.  Where,  in  tlie 
case  of  a  joint  trial,  the  evidence  in  hehalf  of  the  prosecution  is 
all  in,  and  there  is  no  testimony  imjdieating  one  of  the  defend- 
ants, it  is  then  the  duty  of  the  court  to  permit  the  verdict  to  be 
immediatcdy  taken,  ac([uitting  this  one,  and  then  he  will  be  a 
competent  witness  for  the  rest.  If  there  is  some  evidence, 
though  slight,  against  the  defendant  whose  testimony  is  thus  de- 
sired hy  the  others,,  the  court  may,  in  its  discretion,  submit  liis 
case  to  the  jury  at  this  stage  of  the  trial;  and  if  he  is  acMpiitted, 
he  will  he  a  competent  witness.  1  IJish.  Crim.  Troe.,  ^  %i\ 
State  V.  liohertu,  15  Mo.,  28 ;  Fitzgerald  v.  The  State,  l-i  id.,  iXZ. 

In  this  case  the  defendants  were  severed  in  the  trial.  Xo  facts 
were  hrought  to  the  attention  of  the  court,  which  made  it  imper- 
atively necessary  to  comj)ly  with  defendant  or  Scohee's  demand, 
and  the  court  simply  exercised  a  discretion  which  we  will  iiotre- 
vise.  Of  course  a  person  indicated  as  an  accessory,  or  jirincipal 
in  the  second  degree,  may  he  put  upon  his  trial  hefore  the  prin- 
cipal in  the  first  degree  is  tried  or  convicted,  hut  that  question 
has  nothing  to  do  with  the  ruling  of  the  court  hero. 

The  ccnirt  very  properly  excluded  the  testimony  tending  to 
show  that  defendant  joined  his  fence  with  that  of  the  deceased 
hy  permission.  Ko  such  issue  was  raised  in  the  case,  and  if  tlie 
permission  had  heen  granted,  it  would  not  have  justified  or  ex- 
cused the  ofi'ense. 

The  defendant  had  the  riirht  to  remonstrate  with  the  deceased 
against  his  act,  whether  the  fence  was  joined  hy  permission  or 
not,  but  he  had  no  right  to  resort  'to  violence,  in  order  to  pre- 
vent its  being  torn  down.  Upon  thiK  point,  the  court  gave  an 
instruction  presenting  the  (question  in  favor  of  the  defendant,  in 


STATE  r.  UNDERWOOD. 


950 


tin;  f^trongcpt  li^lit.  The  evidence  of  Culliur,  iiljuiit  the  defoiul- 
ant  joining'  to  liis  fence  witliout  leiivc,  was  not  called  out  by  tho 
iiivseciitioii.  The  witness  was  ^ivini^  Imh  testimony  in  the  inir- 
rativo  form,  uiid  nsed  the  remark  before  any  objection  was  nuidc. 
As  soon  as  it  was  objijcted  to,  tlie  conrt  promptly  rnled  it  out.  It 
eoultl  not  he  withdrawn,  for  it  was  already  uttered,  and  if  the  de- 
fLiuliint  C(»nsi(lered  that  it  was  in  anywise  injurious  to  him,  his 
eouiisel  should  have  procured  an  instruction  telling  the  jury  to  dis- 
rci'iu'tl  it.  The  0th  instructi<jn  is  the  one  most  strongly  object- 
til  to,  iuid  that,  as  befin'e  stated,  told  the  jury  that  if  the  defend- 
ant killed  ^Menifee  with  a  gun  loaded  with  powder  and  l»ullets, 
the  law  presumed  the  killing  to  have  been  intentional,  and  it 
was  murder  in  tho  second  degree,  in  the  absence  of  proof  to  tho 
contnuy,  and  it  devolved  upon  the  defendajit  to  show  from  tho 
evidence  in  the  caiise,  to  the  reasonable  satisfaction  of  the  jury, 
tliiit  lie  was  guilty  of  a  less  crime,  or  acted  in  self-defense.  It  is 
(litHcult  to  perceive  how  this  instruction  could  have  injured  tho 
tlefemlant,  as  the  jury  did  not  iind  him  guilty  of  murder  in  tho 
secoml  degree,  but  they  convicted  him  of  a  ditl'erent  and  higher 
jrnule  of  oilense,  namely,  murder  in  the  first  degree  upon  an  in- 
ftniction  which  had  previously  been  given,  re<piiring  them,  be- 
fore tlioy  cuuld  convict  ol  that  degree,  to  find  that  the  killing 
was  wilful,  deliberate  and  premeditsited.  ])Ut  the  instruction  is 
uiiolijeftionable.  To  constitute  murder  in  the  first  degree,  it  is 
necessary  that  circ\imstances  of  wilfulness  and  deliberation  shall 
be  proven.  This  proof,  however,  need  not  be  express  or  ]iositive. 
It  may  be  deduced  from  all  the  facts  attending  the  killing,  and 
if  tlie  jury  can  reas(»nably  and  satisfactorily  infer  from  all  the 
evi'leiiL'c,  the  existence  of  the  intention  to  kill,  and  the  malice  of 
heart  with  which  it  was  done,  it  will  be  sufiicient.  ]>ut  if  cir- 
eninstauces  of  nndice  and  premeditation  are  not  proved,  the  law 
presumes  the  killing  to  be  murder  in  the  second  degree  oidy. 
This  (piestion  was  fully  discussed  in  a  quite  recent  case  in  this 
conrt  {St'ftc  V.  Ilolmcs;  5-t  ]\[o.,  15.3),  and  the  settled  doctrines 
in  tins  ctate  reviewed  and  reiterated. 

The  Sth  instruction  is  based  on  the  well  settled  doctrine  that  a 
party  who  seeks  and  brings  on  a  difficulty  cannot  avail  himself  of 
the  right  of  self-defense,  in  order  to  shield  himself  from  tho  con- 
sequences of  killing  his  adversary,  however  imminent  the  dan- 
ger in  which  he  may  have  found  himself  in  tho  progress  of  tho 


260 


AMEKICAX  CRIMINAL  REPORTS. 


affray.  StaU  v.  Sturr,  3S  Mo.,  270;  State  v.  Zinnaj,  52 
id.,  40. 

Tlic  9tli  iiiwtruction  is  predicated  upon  the  hypotlicsis  that 
there  was  u  mutual  and  \olnntary  combat.  If  that  were  ?o,  de- 
fendant could  not  rely  on  self-defense.  For,  where  parties  bv 
mntual  nnderotandin^,  en<fai!^e  in  a  conflict,  and  death  ensue  to 
either,  the  slayer  will  he  f^uilty  of  murder. 

The  second  instruction  jL^iven  for  the  defendant,  hein^  the  first 
adverted  to  in  a  prior  ])art  of  this  o])inion,  gave  the  accused  tin; 
fnll  henelit  of  all  he  could  claim  in  regard  to  the  right  of  .self-de- 
fense. The  tliird  fully  justiiied  him  if  ho  acted  on  ajipeunmces, 
grounded  on  reasonahle  ca\isc  of  apprehended  danger,  and  was 
surely  suiliciently  favorable.  And  the  fourth  declares,  that  if, 
M'hilst  defendant  was  remonstrating  witli  Menifee  against  tear- 
ing down  the  fence,  the  latter  jiicked  up  his  gun,  tlireatenin<,' t.i 
]<ill  defendant,  and  ])resented  the  same  at  defendant  in  a  hostile 
manner,  then  the  defendant  had  the  right,  in  the  necessary  de- 
fense of  his  ])erson,  to  shoot  and  kill  the  deceased.  When  tlie 
instrnction«  are  all  taken  together,  they  lay  down  the  law  M'itli 
such  nninifest  fairness,  and  withal  are  so  just  1<»  the  defendiiiil, 
tliat  it  is  imjKtssible  to  find  any  real  or  tangible  ground  h'reuiu- 
plaint. 

It  is  further  contended  that  the  defendant  was  not  ])r('sent  in 
court  during  the  whole  ]irogress  of  tlie  trial,  iind  therefore  Uic 
jutlgment  i.;  erroneous.  Upon  this  ])oint  the  record  shows  tliat 
whilst  the  ]>risoner  was  in  jail,  the  attention  of  the  conn,-el  in 
the  cause  was  called  by  the  court  to  the  causes  ashigueil  fur  a 
new  trial,  and  there\i])on  it  was  suggested  by  the  jiroseeutiiii,' 
attorney  that  Ihe  prisoner  .shouM  be  brought  int(t  court;  tlio 
court  then  announced  tliat  it  \rould  not  be  necessary,  as  no  actinii 
A\ould  be  taktni  on  the  motion  it  that  time;  but  that  the  wurt, 
with  a  view  of  understanding  tlie  legal  (piestion,  desired  a  refer- 
tMice  to  certain  autliorities  ridicd  on,  and  also  the  view  of  counsel 
thereon.  Autliorities  were  read,  ;uiil  the  counsel,  both  for  the 
state  and  for  the  defemlant,  statt'<l  their  views  of  the  hg.i!  <|nes- 
tion  involved  in  the  absence  of  the  defendant.  The  further  hear- 
ing of  the  motion  then  ])ass('(l  over  until  another  day,  at  wliirli 
time  the  defendant  was  prc^nt,  whereu,)on  tin;  motion  was  taken 
up,  and  after  counsel  on  both  sides  had  read  the  authorities  re- 
lied on  by  them  respectively,  and  submitted  their  views,  the  court 


STATE  (-.  UXDEUWOOD. 


201 


overnili'il  tlio  motion.  Every  person  inillcteil  for  a  felony  must 
lie  pfCfient  tluring  tlio  trial  (2  AVaiitn.  Stat.,  p.  llOo,  §  15);  but 
lierc  no  step  was  taken  in  the  trial  during  the  defendant's  ab- 
sence. Alter  the  trial  was  over,  the  eourt  recpiested  the  attor- 
iK'V>' to  furnish  it  with  any  authorities  they  might  have,  bearing 
oil  ii  k'giil  (juestion  involve-'  in  the  motion  for  a  now  trial,  and 
i\Iso  to  state  their  views  eoncerning  the  same;  but  no  farther 
;ietioinv!Us  taken;  no  ruling  was  made,  and  nothing  transpired 
Iwvini,'  any  reference  to  the  ])rogress  of  the  triid.  AVheii  tlio 
time  arrived  for  the  court  to  proceed  with  the  determination  of 
tlie  motion,  the  defendant  was  jtresent,  the  final  argument  was 
tliou  iimdt.',  and  the  court  acted  in  his  presence.  This  ]>oint 
iiiibt  lie  rulo<l  against  the  defendant. 

One  more  objection  oidy  remains  to  be  noticed.  Tt  apjiears 
tlmt  lijfurc  the  case  was  given  to  the  jury,  and  whilst  they  were 
ftill  in  the  court  I'oom,  two  witnesses  from  Halls  county  who 
wore  jircsont  on  the  part  of  tho  state,  ascended  to  the  cujtola  of 
the  L'ourc  liuuse  for  the  purpose  (jf  obtaining  a  view  of  the  tov/n. 
The  stairs  by  which  they  wen:  i;p  led  from  a  door  in  one  corner 
uf  tlie  county  clerk's  ollice.  AVhilst  they  were  on  the  court 
Iiiiiise,  tlic  jury  were  conducted  by  the  sherill'  into  the  (!ounty 
c'ki'k's  oilice,  the  room  set  apart  for  them,  for  considtation.  The 
men,  not  knowiiig  that  the  jury  were  there,  desceiided  in  the 
(^amc  way  that  thi'v  had  gone  up,  and  then  opened  the  door  and 
]i:Kse(!  iisunediately  out  of  the  room.  The  jury  were  in  another 
ftirner  of  the  room,  and  n.;  woni  uC  commuiucation  was  had  be- 
tween the  jury  and  tho.  witnesses.  These  facts  are  abundantly 
e.-t;il)!i>lu'(I  vy  the  adidavils  of  the  t  vo  men  !^^•■-;Mselves,  and  by 
the  slici'ill'  and  his  dej)iity,  an<l  by  several  of  the  jurymen. 
Wliilst  I  agree  that  nny  tampering  with  a  jury,  however  slight, 
iii;i\- liii  siitru'icnt  to  set  asid(!  their  verdict,  the  case  here  shows 
iiiiisteiincjusi  .ely  that  there  was  Uc-ither  tampering,  misbehavior, 
imr  any  un])roj)er  con<luct  whatever. 

The!>e  facts  are  ])eri'ectly  evident  without  regard  to  the  ailida- 
vitsuf  the  jurors.  Hut  I  do  not  think  that  the  court  erred  i'.i 
receiving  the  allidavits  of  the  jurors.  The  rule  is  ])erfectly  set- 
tled, that  jurors  speak  through  their  verdict,  and  they  cannot  bo 
allowed  to  violate  the  secrets  of  the  jury  room,  arid  tell  of  any 
partiality  or  nnsconduct  that  transpireil  there,  nor  si)eak  of  the 
iiietives  which  induceil  or  (,)perated  to  produce  the  verdict.     13ut 


1 

W 

■  \  I 

1 

'       It 

263 


A5IERICAN  CRDIIXAL  REPORTS. 


tlicy  may  testify  in  support  of  tlieir  verdict,  that  no  (.listiirljinif 

iiiUnonco  was  brou^'ht  to  bear  upon  tlicin,  and  that  they  were 

not  interfered  or  tampered  with.     This  que^?tion  was  ehibitratelv 

considered,  and  all  the  leading  authorities  collattMl  and  reviewed 

in  Woodiourd  v.  Laiellt,  107  ^[at^s.,  ioo,  and  the  doctrine  was 

declared  to  be  as  above  stated. 

I  think  the  court  did  not  exercise  its  discretion  unsoundly  in 

refusing  to  sustain  the  motion  in  this  respect.     Upon  an  exam. 

ination  of  the  wliole  record,  I  have  discovered  no  material  enor. 

Jmhjmcnt  affirmed. 
TJie  other  judges  concur. 


Jones  vs.  CoMMoxwicAi/rii. 
(7.")  Pa.  f^t.,  40;'..) 


HoJiiciD]: 


Ditttiurtion  hcfinrii  iiiiinhf  in  iltc  Jirst  inul  vtitrdcr  in  fhe  i^icoid 
(U'f/nes  —  Dilihvrdtiun  oiid  jinmiilitdtiun. 


Tlie  n's])on(lf'iit  i)]i'ii(li'(l  ^i'uiKy  to  ;iii  imliitniriil  for  miinlcr.  In  iinDnlriiio' 
with  till'  .stiitnlf,  the  trial  court  ln'anl  ('viilrin.'c  ol'  tin'  (;ircuiiistaii  I's  cif  ihf 
case,  and  ail.judfi'od  tlic  n'spoudi'iit  fiuilty  ot  luurdiT  in  tin'  lirst  d.'jrr'C.  A 
rciiui'st  liiiviii;;  Imth  niadi'  for  .^pi'cial  lindiii/^'s,  and  tur  liliii;,''  tin'  trstiuKniy 
(in  whitli  thii  iindinyn  wen'  l)a.-<i'd,  the  rciurd  wan  ri'uiovcd  to  the  sii|nviiio 
court  h.v  a  writ  of  error,  ami  tho  jinlj^iniMit  of  tlio  trial  court  n'vcrsi'il,  mil 
thf  rt'f^iiondcnt  adjudf^rd  guilty  of  niunli'r  in  thi'  si'tond  dcLfni'. 

The  vesiKindi'nt  had  taken  to  hard  drinkinir  on  account  of  tlu' contiimi'il  inlul- 
ti'rics  of  his  wife.  Jlo  iiad  att('n\i)ted  suicide  by  taking'  liuidiimnii,  mil 
althoiif^h  his  lifi  ^a.s  saved,  continui'd  up  to  the  time  of  the  killing:  in  -.i  t"ii- 
slant  statiM)f  nervous  e.\citeirient,  drinkin",',  and  keepiuj,'  lauilaniuii  iilmiit 
him.  On  the  diiy  of  the  homicide  !u!  was  in  a  state  of  h\<x\\  nervous  cxdti'- 
uicnt,  iiud  acted  Mke  a  <'razy  man.  On  the  evening?  of  the  killing',  ho  wi'iit 
to  the  house  of  the  decased,  his  wife's  mother,  between  nine  and  leiioM«l;. 
He  said  he  had  conio  to  settle  tiie  fuss.  His  luother-in-law  tohl  him  to  f.'". 
He  stepjied  b;iik.  Sh.'  picked  np  a  stool,  and  said  she  would  level  iiiiii  witii 
it  if  hi!  did  nut  ei).  He  said,  "  I'll  level  you  now,"  and  innnediat'Iv  inil!''! 
on*)  a  pistol  and  shot  her.  PrevimKs  to  this  lie  had  hern  on  jrood  teiiiis  wiil, 
her.  Jlrld,  mui-der  in  the  seeund  deeri'e,  then!  not  beiiiy;  sullicicut  cviiki!  ' 
of  premeditation  and  deliberation. 

Agnkw,  C.  J.  In  this  case,  if  we  confine  our  attention  to  thu 
weapoii,  its  previous  preparation,  the  threat  j)roved  by  ^Ir. 
Crooks,  the  time  for  deliberation,  and  the  circumstances  of  the 
killing  of  Mrs.  Hughes  by  the  prisoner,  we  might  conclude  that 


JONES  V.  COMMONWEALTH. 


2^>3 


his  crime  wiis  murder  in  tlic  iirst  clc<^rcc.  In  tliis  respect  the 
It'ai'Mcd  jiulge  of  the  oyer  iuid  terminer  had  sufficient  evidence 
liiscify  his  lindin;!?  of  the  decree,  Jjut  ample  time  for  retlec- 
tiuii  iiiiiy  exist,  find  u  prisoner  may  seem  to  act  in  his  right  mind, 
and  from  a  cunseious  purpose;  and  yet  causes  may  ail'ect  Ids  in- 


tellect, 


^\^    III 


f  reilection,  and  hurrying  onward  his  unhinged 


iiuiul  tu  rasli  und  inconsiderate  rei-^olntions,  incompatible  with 
the  deliberation  and  ])remeditatit)n  delining  murder  in  the  first 
degree.  When  the  evidence  convinces  us  of  the  inability  of  the 
prv  .;  r  1o  thiidc,  rellect  and  weigh  the  nature  of  liis  act,  wo 
111.,'  !:  /--Late  before  we  ])roiiounce  n])on  the  degree  o;  his  oiicnse. 
That  reasonable  doubt  which  intervenes  to  j)revi  nt  a  fair  and 
huuest  mind  from  being  satisfied  that  -.t  deliberate  and  jiremedi-' 
tated  purpose  to  take  life  existed,  should  throw  its  weight  in  the 
scale  to  forbid  the  sentence  of  death.  Intoxication  is  no  excuFO 
furcriiao;  yet  when  it  so  clouds  the  intellect  as  to  deprive  it  of 
the  puwer  to  think  and  weigh  the  nature  of  the  act  committed, 
it  may  juvvent  a  convictiun  of  murder  in  the  iirst  degree.  The 
intent  tu  take  life,  with  a  full  and  conscious  knowledge  of  the 
jiurpasc  to  do  so,  is  the  distinguishing  criterion  of  murder  in  the 
tirst  degree ;  an<l  this  consciousness  of  the  ])urposo  of  the  heart 
is  deliued  by  the  word-s  deliberately  and  premeditatedly.  ]\[uch 
has  liecii  said  upon  the  meaning  of  these  wordn,  some  (d'  which 
may  iiii>lc:id,  if  we  do  not  consider  well  the  v'ases  in  which  it  has 
lieeii  uttered.  In  the  Cominonwedlth  v.  ()'JI((i'(f,  tried  in  1TD7, 
!  Lief  Justice  JNIidvKAX  said:  ''What  is  the  meaning  of  the 
(Vurdti  (lclil)erately  and  premeditatedly  i  Tlie  Iirst  implies  >jmiin 
degree  of  reilection.  Tlie  ])arty  must  liave  time  to  frame  the  de- 
sign. Tlie  time  was  very  short;  it  cannot  be  said  to  be  done 
njdlly.  The  legislature  must  have  put  a  diilerent  cniistruetiou 
un  the  words  deliberately  and  ]»remeditatedly.  If  hi- had  time 
to  tliiuk,  tlii'ii  he  had  time  to  think  he  would  kill.  If  you  arc 
111  opinion  he  did  it  deliberately,  with  intention  to  kill,  it  is  mur- 
der in  tho  iirst  degree.  If  he  had  time  to  thiid<,  and  did  intend 
to  kill,  for  a  minute  as  well  as  an  hour,  or  a  day,  it  is  siitlicient." 
The  correcti'.ess  of  this  charge  to  the  jury  will  not  be  doubted,  if 
weexaiiiiue  the  circumstances,  and  yet  this  is  essential  to  under- 
stand it  properly.  O'llara  was  a  journeyman  shoemaki'r,  sitting 
<Mi  his  bi'iich  iit  work  with  Uaskins  and  others.  Aitkiiis.  the 
deceased,  his  friend,  came  upstairs  and  >^aid  to  him:    "  1  have 


111 


I        I 


M I 


.  ,1 


264 


AMERICAN  CRIMINAL  REPORTS. 


Ijcen  tiillviug  iiLout  you  hclow,  tliis  hour."  *'  Yes,"  said  Tlaskins 
"about  the  iivo  slieep  you  stole."  Thereupon  O'llara  iinmeiU. 
atclij  left  lii->  Work  ujH)n  the  bench,  took  u})  a  shoemaker's  knife 
by  hiri  side,  went  up  to  Aitkins,  and  stabbed  him  in  tlie  IjeHv. 
The  act  was  not  thoughtless,  for  the  prisoner  had  time  to  liiv 
down  his  work,  take  up  tlie  knife,  rise  and  walk  up  to  his  friend, 
and  to  strike  him  in  a  vital  part  with  an  instrument  of  deiitli. 
ITpon  every  princi])le  of  Iriman  action,  we  must  concluilo,  uimIct 
tliese  circumstances,  that  O'llara  intended  to  take  Aitkiiis's  lifo, 
t)therwise  the  tliont^hts  of  men  never  can  be  deteriMiiicd  frum 
clear  ami  distinct  acts  evidenciiii,' the  purpose  of  the  mind.  There 
was  irritation,  it  is  true,  heii^'htened  by  the  previously  oxistiii" 
story  about  the  sheep;  but  it  was  without  any  just  cause  or 
pr(jV(;cation  to  take  life,  and,  tlierefore,  evidenced  a  heart  iiialii,'- 
uant,  and  ready  to  execute  vengeance  even  uj)on  a  friend,  in  u 
inoii.ent  of  wicked  j)assion.  In  such  a  case,  a  moment  was  siiOi- 
cient  to  form  and  deliberate  u])on  the  purpose  to  take  life,  and 
jtremeditate  the  means  of  executing  it.  ]>ut  these  words  of  tlie 
chief  justice  are  sometimes  wrested  from  their  application  ami 
apj)lie(l  to  cases  where  reason  has  been  torn  up  by  the  roots,  and 
judgnu'iit  jostled  from  her  throne. 

Another  case,  often  (pioted  and  misapplied,  is  that  of  llicliard 
Smith,  tried  before  I'resideut  ]iiish,  in  ISIO.  Smith  had  become 
intimate  with  the  wife  of  Cajttain  ('arson,  and  had  a  dillieulty 
with  him  in  his  own  house.  lie  returned  with  ^Irs.  Carson, and 
went  with  her  n[)  into  the  parlor.  Carson  came  up  unarnied. 
and  ordered  him  to  leave.  Smith  had  armed  himself,  and  held 
one  hand  under  his  surtout,  and  the  other  in  his  breast.  Carson 
told  Smith  that  he  had  come  to  take  peaceable  possession  of  his 
own  house,  and  the  latter  must  go.  Smith  said  to  Mrs.  Carson, 
"  Ann,  shall  1  go'f'  SIu;  nsplied,  "  No."  Smith  moved  into 
the  corner  of  the  room,  Carson  following  him,  and  telling  him 
he  must  go,  at  the  same  time  letting  his  arms  fall  by  his  side, 
and  saying  he  had  no  weapon.  UiH)n  this.  Smith  drew  a  jiistul 
from  under  his  surtout  and  shot  Carson  thntugh  the  head,  threw 
down  his  pistol  and  ran  down  stairs.  In  this  state  of  faets. 
Judge  Hush,  charging  upon  the  subject  of  delibenition,  said: 
"The  truth  is,  in  the  nature  of  the  thing,  no  time  is  ilxed  hy 
law,  or  can  be  Ilxed,  for  the  deliberatitui  re(|uired  to  constitute 
the  crime  of  :  airder."     Speaking,  then,  of  premerlitation,  lie 


JONES  V.  COMMONWEALTH. 


m 

1; 

;  ;  i  ■ ' 

savs:  "It  is  cipiallj  true,  both  in  fact  ami  from  experience,  that 
no  time  is  too  short  for  a  wicked  man  to  frame  in  his  mind  the 
scheme  of  murder,  an<l  to  contrive  tlie  means  of  accomplishing 
it.''  We  cannot  doubt  the  correctness  of  these  renuirks  in  the 
case  in  wliich  they  were  made,  but  cases  often  arise  wliere  this 
I'Oiidiiiess  of  intent  to  take  life,  wlieu  imputed,  may  do  <^reat  iu- 
jiistico.  Hence  it  was  said  in  ]) rami's  Cane,  8  P.  F.  Smith,  10; 
'•This  expression  (of  Jud<ije  liusli)  must  be  qnaliiied,  lest  it 
inislciul.  It  is  true  tliat  such  is  the  swiftness  of  human  tliought, 
no  time  is  so  short  in  which  a  wicked  man  may  not  form  a  de- 
fi:;!!  to  kill,  and  frame  the  means  of  executing  his  purpose;  yet 
this  i-iuldeiiness  is  opposed  to  premeditation,  and  a  jury  must  bo 
well  convinced  upon  the  evidence  that  there  was  time  to  deliber- 
ate and  premeditate.  The  law  regards,  and  the  jury  must  iind 
the  actual  intent,  that  is  to  say,  the  fully  formed  purjiose  to  kill, 
with  SI)  niuch  time  for  deliberation  and  premeditation,  as  to  con- 
vince them  that  this  })urpose  is  not  tlie  immediate  oll'spring  of 
rashness  and  impetuous  temper,  and  that  tlie  mind  has  become 
fiillv  conscious  of  its  own  desiiju.  If  there  be  time  to  frame  in 
the  iiiiud  fully  and  consciously  the  intention  to  kill,  and  to  se- 
lect the  weajion  or  means  of  death,  and  to  tliinkand  know  before 
liand,  though  the  time  be  short,  the  use  to  bo  made  of  it,  then 
there  is  time  to  deliberate  and  })remeditate.''  This  was  said  in 
the  case  of  a  suddeti  atlVay,  where  the  circumstances  made  it  a 
sci'iutis  (juestion  whether  the  act  was  ])remeditated,  or  was  the 
result  of  sudden  and  rash  resentment. 

Thus  we  perceive,  that  at  tlu-  Ixtttom  of  all  that  has  ])een  said 
on  the  subject  of  murder  in  the  tirst  degree,  is  the  frame  of  mind 
in  which  the  deadly  blow  is  given;  that  state  of  mind  which  en- 
ahles  the  ])risoner  either  to  know  and  be  fully  conscious  of  his 
own  purpose  and  act,  or  not  to  know.  Why  is  insanity  a  defense 
to  homicide?  J5ecause  it  is  a  condition  of  the  mind  which  ren- 
ilei's  it  itica[)able  of  reasoning  and  judging  correctly  of  its  own 
impulses  and  (»f  determiiilug  whether  the  impulse  should  be  fol- 
lowed or  resisted.  Intelligence  is  iU)t  the  only  critcu'ion,  for  it 
often  exists  in  the  madman  in  a  high  degree,  making  him  shrewd, 
Matchftil  !iiid  eapable  of  determining  his  purpose,  and  selecting 
the  means  of  its  accomplishment.  Want  of  intelligence,  there- 
fore, is  nut  the  only  defect  to  modei'ate  the  degree  of  oll'ense; 
hut  with  iutelligence  there  may  be  an  absemie  of  power  to  deter- 


266 


AMERICAN  CRIMINAL  REPORTS. 


mine  properly  tlie  true  nature  and  chanicter  of  tlie  act,  its  effect 
upon  the  subject,  and  the  true  responsibility  of  the  actor;  a  pow- 
er necessary  to  control  the  inipi;lses  of  the  mind,  and  prevent 
the  execution  of  the  thought  which  possesses  it.  In  other 
wi'i'ds,  it  is  the  aljsence  of  that  self-determining"  power,  wliieli  in 
u  sane  mind  renders  it  conscious  of.  the  real  nature  of  its  own 
purjjoses,  and  capable  of  resisting  wrong  impulses.  Where  this 
self-governing  power  is  wanting,  whether  it  is  caused  by  iusuni- 
ty,  gross  intoxication,  or  other  controlling  intlueuces,  it  cannot 
be  said  trutlifully  that  the  mind  is  fully  conscious  of  its  own 
purposes,  and  deliberates  or  premeditates  in  the  sense  of  the 
act  describing  murder  in  the  first  degree.  We  must,  however, 
distinguish  this  defective  frame  of  mind  from  tluit  wickoiluessof 
heart  which  drives  the  murderer  on  to  the  commission  of  liis 
crime,  reckless  of  consetpiences.  Evil  passions  do  often  sooiuto 
tear  up  reason  by  the  root,  and  urge  on  to  murder  with  lieedlesj 
rage.  But  they  are  the  outpourings  of  a  wicked  nature,  not  uf  an 
unsound  or  disabled  mind.  It  becomes  necessary,  therefore,  to 
inquire,  upon  the  evidence  in  this  case,  whether  the  ])risonerw!is 
really  able  to  deliberate  and  premeditate  the  homici<le. 

William  S.  Jones  had  been  upon  bad  terms  with  his  wife.  Slie 
had  Ijccome  too  intimate  with  another  Jones  called  Charley. 
William  S.  Joiies,  failing  to  l)reak  off  the  association,  got  to 
drinking  hard,  and  linally,  after  another  quarrel  with  his  wife 
on  the  loth  of  June,  isTl,  attempted  suicide  by  taking  a  luri,'e 
quantity  of  laudanum.  Dr.  Davis  found  him  lying  on  a  IdUiiitc 
jiartly  insensilde,  eyes  nearh"  cIos.mI,  ])U].!is  contracted,  :\ud  f:u'0 
discolored  by  congestion.  Energetic  remedies  were  used,  ami  lie 
was  f?o  far  restored  as  to  be  out  of  danger;  but  the  efl'ects  (if  the 
laudanum  remained.  From  this  time  until  the  night  of  tlic  19th 
of  June,  when  he  took  the  life  of  Mrs.  Iluglus,  his  niotlier-iii- 
law,  he  was  in  a  constant  state  of  nervous  excitement,  contiiiiiel 
drinking,  and  had  bottles  of  laudanum  about  his  person.  .Many 
witnesses  descrilie  him  as  without  sense,  constantly  talking  non- 
sense, wild  in  apjtearance,  and  incoherent  in  speech.  Some  :^ay 
lie  acted  like  a  nuin  <lrinking  hard,  was  intoxicated,  and  once  foil 
from  a  horse.  Others  described  him  as  looking  crazy,  talking  ti 
himself,  his  hands  going,  his  heail  thrown  back,  walking  to  and 
fro,  throwing  his  head  about,  swinging  his  arms,  and  wild,  nerv- 
ous and  excited,     lie  would  jump  upon  a  chair  and  begin  to 


JONES  V.  COMMONWEALTH. 


26T 


preach,  and  run  off  upon  Cliarley  Jonos  and  his  wife;  said  lio 
was  "[oinif  to  build  a  tavern  on  the  niouatain,  and  a  church  be- 
side it;  claimed  all  the  property  about,  and  was  evidently  much 
uut  of  the  way.  These  appearances  were  particularly  noticed  on 
the  lOtli  diiy  of  June,  the  day  of  the  honiicide.  ila  was  then  on 
verv  had  terms  with  his  wife,  yet  seeking  her  and  remonstrating 
with  her,  and  on  the  afternoon  of  that  day,  he  had  beaten  and 
abused  her,  chasing  her  down  stairs  and  into  the  street,  and  there 
striking  and  kicking  her,  until  separated  by  others.  lie  con- 
tiiuietl  in  this  condition  down  into  the  night  of  the  19th,  when 
he  came  to  ^[rs.  Hughes's  house,  between  nine  and  ten  o'clock. 
Step])iiig  inside  of  the  door,  he  asked  Mrs.  Hughes  if  the  fuss 
was  settled;  said  he  had  come  down  to  settle  it.  She  rose  and 
told  him  to  go  aM'ay;  told  Lizzie  to  fetch  tho  poker;  said  she 
would  strike  him  if  he  did  not  go  away.  He  stepjied  back.  She 
picked  up  a  stool,  and  told  him  if  he  did  not  go  away,  she  would 
level  him  with  it.  lie  said,  "  I'll  level  you,  now;  "  pulled  out 
a  pistol,  stepjied  forward  and  shot  her.  Mrs.  Hughes  twice  ex- 
claimed, "  I  am  shot,"  and  went  back  into  the  kitchen,  while 
Jones  was  seized  by  the  jiersons  ])resent,  and  the  ])istol  wrested 
from  his  hand.  Between  him  and  Mrs.  llui^hes  there  had  been 
a  state  of  good  feeling,  before  he  took  the  laudanum,  and  she  at- 
tended him  upon  the  day  when  he  was  under  its  influence.  Ho 
spoke  of  her  as  his  best  friend.  His  conduct  towards  his  wife, 
her  daughter,  had  led  Mrs.  Hughes  to  resent  it,  and  some  fcel- 
inj:  had  arisen  on  the  part  of  .Tones,  but  after  his  arrest,  he  said 
lie  took  the  pistol  to  kill  !ii>  wife,  and  the  old  wouian  had  got  it. 
Looking,  then,  at  the  state  of  Jont->'  mind,  from  the  10th 
mitil  the  10th  of  dune,  and  down  to  the  very  moment  be  tired 
the  pistol,  an<l  also  at  the  suddenness  of  his  ipiarnd  with  ^[rs. 
lluyhos:  hor  call  for  the  poker,  and  lifting  the  stool,  it  seems  to 
us  a  matter  of  grave  doubt  wlietlier  Ir's  fi-ame  of  mind  was  such 
tliat  he  was  capalde  cither  of  tkdiboration  or  ]>renu'ditation.  It 
a]>pears  to  have  been  rather  the  sudden  impui-"  uf  a  disordered 
hrain,  weakened  l>y  potations  of  laudanum  and  sjiirits,  and  id'  a 
disordered  mind,  led  away  from  reason  and  judgmtnt  by  dwell- 
iuiT  upon  the  conduct  of  his  wife,  infliuenced  by  his  continued 
state  uf  excitement.  It  ])resents  a  case  ot  the  preparatioi.  of  a 
wapoii.aiid  an  undelined  ])urj»ose  of  viuleneo  to  s«'iiu  one,where 
the  time  for  I'etlection  was  ample;  but  whc!^  the  frame  of  uiiud 


l|«n| 

iPT 

1 

f 

' 

208 


A^IEinCAN  CRIMINAL  RErORTS. 


was  waiitiiiiij,  wliicli  would  eniihlc  tho  prisoner  to  l)o  fully  con. 
sciourt  of  his  ]Hirj)ose,  or  to  resolve  to  take  the  life  of  the  deceasotl 
with  (leliheration  and  ])renieditation.  Yet  it  was  clearly  murder, 
done  without  sutllcicnt  provocatitni,  and  without  nocetjsity,  and 
in  a  frame  of  inind  evincing  recklessness  and  that  common  law 
malice,  which  distinguishes  murder  from  numshuiujliter.  There 
M'us  error,  therefore,  in  ascertaining  the  degree,  and  sentenciii<' 
to  death. 

The  judgment  of  the  court  of  oyer  and  terminer  of  Luzerne 
county  is  reversed,  and  this  court  ])roceeding  now  to  determine, 
U])on  the  same  evidence,  the  degree  of  the  crime  whereof  tlic 
said  AV^illiam  S,  Jones  is  convicted  by  liis  own  confessiDU,  now 
finds  and  declares  that  the  crime  of  the  said  William  S.  .hnies 
is  murder  in  the  second  degree,  and  gives  judgment  accdnlinirlj, 
and  forasmuch  as  the  said  AVilliam  S.  Jones  is  conHned  in  tlie 
public  jail  of  Luzerne  comity,  distant  herefrom,  it  is  fnrtlier 
ordered  that  the  record,  together  Avith  this  finding  and  judgment 
bo  remitted  to  the  said  court  of  oyer  and  terminer  of  Luzerne 
county,  with  a  direction  to  the  judges  thereof  to  proceed  to  pro- 
nounce sentence  upon  tho  said  William  S.  Jones,  as  for  murder 
in  the  sec(»nd  degree,  according  to  law,  and  for  such  term  of  im- 
prisonment at  labor,  as  they,  tho  said  judges,  shall  adjudge  to  bo 
a  fit  and  proper  punishment  for  his  said  otlensc. 


McCuE  Vd.  CoMMONWKAiyrU. 

(78  Pa.  St.,  185.) 
iroMicmF.:    Kiukme  to  show  motive  —  Ikgvee  of  murder  —  I'nictii'c, 

On  a  trial  for  fckniioiis  lioiiiiiidc,  iiiiy  cMilcnci' tcndiii!;  to  Amw  that  tin'  ii'siwiul- 
f'lit  was  ji'iiloiis  of  tho  deceased  is  admissiljle  i\s  teiidin<;  to  sliow  a  motive. 

On  a  trial  for  fi'loiilous  lioinicide,  no  preKuniption  ainses  from  the  IdlJiiii,',  of  lui  of- 
fense iiiL^lier  liiaii  imu'der  in  tlic  second  defiree. 

Tho  fiicts  in  this  c;ise  /((■/(/  s\illicient  to  sustain  a  venlict  of  j,'iii]ty  of  miinlerin 
the  first  degrt'e. 

Where  t,he  record  docK  not  show  atfinnatively  that  liefore  sentence  was  \m- 
nounced  tho  i-espondi'nt  was  a«ked  if  he  had  iuiythiiiff  to  say  why  seiiti'iico 
should  not  be  pai-•^ed  upon  him.  sentence  will  he  reversed  and  the  in'isoniT 
rouKUided  to  i)0  bontencod  afresh,  hut  the  verdict  is  not  allected. 

AoNKW,  C.J.     We  thiidc  tho  assignments  of  error  in  this  case 
fail  to  eliow  any  ground  for  reversal,  except  of  tho  senteneo  of 


McCUE  V.  COMMONWEALTH. 


269 


the  court  of  oyer  niid  tcnuiuer.  It  was  certainly  competent 
to  show,  that  tlic  prisoner  and  the  deceased  had  viL-ited  tlie  sanio 
woiimn,  and  to  follow  this  by  evidence,  that  immediately  after 
the  lidiiiicido,  the  prisoner  referred  to  the  fact  that  he  warned 
the  (Iceoased  to  let  her  alone,  that  she  would  be  a  curse  to  any 
one,  and  now  his  words  had  come  to  j)a.ss.  Jealousy  is  among 
the  stroni^ost  of  the  human  passions,  and  it  certaii.ly  was  for  the 
jury  to  determine,  in  the  absejice  of  any  other  assignable  motive, 
whether  it  was  the  cause  of  the  prisoner's  .act.  The  deceased 
and  the  i»risoner  had  been  apparently  upon  good  terms,  and  lived 
toi,'etlier  as  single  men.  The  witness,  Amelia  Wertman,  testitied 
that  she  was  engaged  to  the  deceased,  and  that  the  ])risoner  had 
visited  her,  and  jiroposed  to  her  to  run  away.  If  nothing  had 
hoen  secretly  rankling  in  his  heart,  the  shooting  under  the  cir- 
cumstiuu'cs  stated  was  singular  and  scarcely  to  be  accounted  for. 
The  eviduiice  of  intoxication  at  the  time  of  the  shooting  is  very 
elight,  and  the  degree  of  intoxication  must  have  been  very  little. 
Afterwards  he  ai>j)ear8  to  have  been  a  good  deal  more  so,  though 
not  excessively  drunk. 

There  was  no  evidence  that  the  deceased  liad  used  threatening 
langufii^e  or  acts  towards  the  prisoner.  Hence  the  answer  of  the 
count  to  the  tifth  point  was  correct.  The  facts  were  referred  to 
tlie  jury.  The  onl}'  material  (piestiou  is,  whether  the  evidence 
in  tlie  case  contained  the  elements,  or  "  ingredients  "  of  murder 
ill  the  first  degree.  It  is  certainly  true,  that  the  commonwealth 
must  establish  the  existence  of  these  elements,  otherwise  no  pre- 
sumption arises  from  the  killing, of  an  offense  higher  than  mur- 
der in  the  second  degree.  I'ut  if  the  evidence  may  reasonably 
admit  of  the  conclusion,  that  the  murder  was  wilful,  deliberate 
and  premeditated,  it  is  for  the  jury  to  pronounce  upon  tlie  degree 
of  the  crime,  and  a  court  of  error  will  not  reverse.  In  giving 
an  interpretation  to  the  act  of  February,  1870,  we  have  said,  if 
there  have  appeared  in  the  testimony  the  ingredients  to  consti- 
tute murder  in  the  first  degree,  our  jjower  ceases.  AV\*  do  not 
Bit  hero  to  hear  the  case  .as  upon  a  motion  for  a  new  trial,  to  de- 
termine where  the  weight  of  evidence  lies,  but  "  to  determine 
whether  tlie  ingredients  necessary  to  constitute  murder  in  the 
first  degree  shall  have  been  proved  to  exist."  These  being 
proved,  the  jury  must  determine  the  guilt  or  innocence  of  the 
prisoner.     G'nmt  v.  Comma iiwealtfi,  21  P.  F.  Smith,  iOS. 


# 


IM)'  '■• , 


270 


A^IKUICAN  CllLMlNAL  REPORTS. 


i  1 


This  Icjuls  us  to  iiuiuiro  into  tlie  circimistmiccs  of  tlio  killinj. 
I)iit  oiie  witness,  Cliiu'les  McCJiirty,  was  ]»reseiit.  Ilia  iiccountuf 
tlio  iilliiir  :.s  coiu'i.sc  luul  clear.  On  Sumlay,  October  '_'.'>,  ],s74 
]\r(r( 'arty  was  with  tlie  ])risoiier,  wlio  invitctl  liim  to  ('(.nie  iiiti) 
the  lioiise  wlierc  he  and  the  deceaiied  lived.  On  ^oin^  in,  i)ietci' 
the  deceased,  Avas  lyinf^  in  a  hunk,  a])i)arently  asleej).  ^Mclhie, 
the  ]>ri.<oner,  and  jVIcCarty  took  a  scat  hy  the  win(U>w  and  tookii 
drink  of  wine.  McCue  <j;ave  iMcX^arty  sonietliini^  to  ai-jtly  tolii, 
sore  eyes,  and  wliile  lie  was  applyiiii^  it,  McCuc  was  hnntin;,' fm- 
some  money  in  his  pockets,  took  oil'  his  vest,  and  laid  a  |iistol 
on  the  window  sill.  ]\[cCarty  said,  "  J'arney,  do  you  curry  a  piv 
tol?"  lie  said  he  did;  it  stoixl  him  in  hand  to,  and  he  wouH 
use  it  jtrohahly  heforc  1  thoujjjht.  Dieter  jumped  up  and  Hiiiil, 
"  You  are  always  talking  of  putting  a  hidlet  into  sonuOxxly.  If 
yon  think  you  can  put  one  into  me,  come  out  and  try  it."  lie 
then  made  for  the  door,  and  Dieter  ran  against  him  outside  df 
the  door,  throwing  him  upon  his  hands  and  knees.  AViiile  tliev 
were  going  out,  j\[cCue  grabbed  the  ])ist(d  from  the  window  and 
followed.  The  witness  ran  across  the  street,  and  J\lc(,"uo  ful- 
lowed  J)ieter  closely,  and  when  within  four  feet  of  him  hrod,  the 
ball  entering  Dieter's  right  side,  in  front,  between  the  seventh 
and  eighth  ribs.  ])ieter  said,  "  J>arney,  you  have  jtut  ( iie  of 
them  into  me;"  and  ap])roached  ]\[c(!ue.  Mc('ue  raised  the 
l)istol,  and  Dieter  knocked  it  out  of  his  hand,  closed  with  Mo- 
Cue,  threw  him  down,  and  chokeil  him  until   lMc(3ue  gave  up. 

The  ])istol  was  ])icked  up  and  found  cocked.  One  load  wns 
discharged,  two  loads  renuiimd  in  it,  and  the  fourth  cliaiiiln'i' 
seemed  not  to  have  been  charged.  These  are  the  im[i()rt:iiit  facts 
bearing  upon  the  shooting.  The  act  was  clearly  unj)rov()kcd  aiiil 
needless.  The  deceased  was  unarmed,  and  had  made  iKt  threats 
or  demonstrations  against  ]\[cCue.  If  what  he  said  when  lie 
jumped  U]>and  ran  out  may  be  construed  as  idle  bravado,  it  was 
neither  justilication  nor  excuse  for  the  shooting.  The  ])ist()l  was 
loaded  with,  liiree  charges;  it  was  within  four  feet,  or  six,  as 
another  witness  stated,  of  J)ieter's  front  side,  atul  was  dischari,'0(l 
right  at  him,  the  ball  penetrating  the  I'ver,  a  vital  organ;  ami 
the  prisoner  raised  it  again  to  discharge  it.  AVhat  then  must  we 
say  of  an  act  so  ])lainly  directed  at  the  life  of  another,  so  un]m)- 
Yoked  and  so  barbarous,  done  with  a  deadly  wea[)on,  under  no 
circumstances  of  rage  or  passion,  produced  by  any  reasunablo 


McCUK  c.  COMMONWEALTH. 


271 


cin.-ic  of  j)ri>V(»cati(iii.  (^Icarly,  there  wis  suflicieiit  time  to  think, 
(luliliemtu  iiiul  prcnioditiite  the  net;  us  elcjirly  tlie  iU't  wnt  wili'iil 
mill  iiiti'iitioiiiil,  1111(1  tlie  iiistrmiieiit  used  n  deiidly  one,  iiimed  at 
11  vitiil  piii't,  M'liere  deatli  was  the  ])n)1)al)le  and  natural  conse- 
(iiRiico  of  the  act.  What  other  intention,  than  an  intention  to 
kill,  could  he  rationally  inferred  from  the  whole  eonduet  of  the 
jirisoiier?  The  motive  may  he  ohscure,  indeed,  may  not  he 
fiitlioiiit'd;  hut  the  lU't  was  there,  plainly  and  fully  ohvioiuj  to  the 
senses,  and  the  ellect  of  it  elearly  ojten  to  the  prisoner's  own 
miiiil.  The  ingredients  of  the  crime  of  murder  in  the  lirst  de- 
<;ree  were  all  there,  however  inscrtitahic  may  he  the  causes  which 
moved  the  prisoner  to  commit  the  deed.  AV'hcn  all  the  elejuentti 
of  the  crime  are  present,  and  when  there  can  he  hut  one  rational 
iaferoiice  from  the  act  itsiilf,  retrihution  cannot  he  avoided,  hc- 
oiiiise  tlie  motive  lies  hidden  and  unrevealed  in  the  heart  of  him 
uiily  who  could  disclose  it. 

It  is  true  the  time  was  short  and  tlic  hullet  swift,  and  God 

alone  knows  the  motive;  hut  the  time  was  not  too  short,  or  tlio 

iiiesseii^'or  of  death  too  speedy,  to  tahe  from  the  i)risoner  a  con- 

fciousiiess  (tf  the  true  nature  of  his  act.     Of  this,  thcref<»re,  the 

jury  must  judge,     i'liey  had  f^round  for  their  verdicc  a7ul  their 

Cdiiehisioii,  that  the  ])ris()ner  intended  to  kill,  and  wilfully,  and 

with  doliheratioii  and  ])remeditation  shot  Dieter,  was  iu)t  irra- 

tiiiiiul  or  plainly  unfounded.     The  circumstances   indicated  ''a 

Micked  and  de])rave'.l  disjxjsition,  a  heart  fatally  hent  on  mis- 

cliief.''    The  act  wa^'  not  more  siuhlen  than  that  of  OMIara,  who 

killed  Aitkins,  and  liad  less  ])rovocation   than  liis.     Coininon- 

m-dlth  V.  D'lTuiu,   App.  t(»  7    Smith's  J.aws.  O!)-!.      AVithuut 

iuktptiiig  all  Mie  lan^'iiau^e  of  Chief  Justice  McKkan  in  that  case, 

1  iiuiy  use  that  of  .Iudt,'e  SruoNo  in  Cathmrt  i\  The  Common- 

v\(ilth,  1  Wrii^ht,  II L':  "If  the  killin-^  was  not  accidental,  then 

iiiiiliec  and  a  (hjsii^n  to  kill  were  to  he  ])resumed  from  the  use  of 

a  ileiully  weapon;  for  the  law  adoi)ts  the  common  rational  helief 

tli.it  a  man  intends  the  usual,  immediate  aiul  natural  conse<piences 

of  his  voluntary  act.     lluiiiaii  reatonwill  not  tolerate  the  denial 

that  a  man  who  intentionally,  not  accidentally,  tires  a  musket 

hall  through   the  hody  of  his  wife,  and  thus  inilicts  a  mortal 

Wiitiiul,  has  a  heart  fatally  hent  on  mischief,  and  intends  to  kill    ' 

We  are  of  opinion,  therefore,  that  the  elements  uf  the  crinio 

foiiiul  hy  the  jury  existed  in  the  evidence,  and  so  far  there  was 

no  error. 


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272 


AMERICAN  CRIMINAL  REPORTS. 


But  there  is  one  error  for  which  the  sentence  of  the  court  must 
be  reversed.  It  does  not  appear  from  the  record  that  the  pris- 
oner  was  asked  before  sentence,  why  sentence  of  death  should 
not  be  pronounced  upon  him.  This  is  a  fatal  error,  and  affects 
the  merits  of  the  case.  It  is  necessary  to  ask  the  prisoner  this, 
that  he  may  have  an  opportunity,  before  the  penalty  of  death  he 
visited  upon  liim,  to  plead  in  bar  of  the  sentence  any  matter  suf- 
ficient  to  prevent  its  execution.  lie  may  have  found  out  some 
good  reason  why  the  trial  was  not  legal,  or  he  may  plead  a  par- 
don, or  supervening  insanity.  The  question  and  the  answer  that 
lie  hath  nothing  to  say  other  than  that  which  he  hath  hefore 
eaid,  or  this  in  substance,  must  .appear  in  the  record  before  the 
sentence  can  be  pronounced.  Vrine  v.  The  Commonwealth,  C 
Harris,  lOi;  Doiujhcrty  v.  Commonwealth,  19  P.  F.  Smith,  291. 
In  this  case  the  question  may  have  been  asked  in  fact,  but  it 
does  not  apjiear  in  the  record,  and  as  it  is  a  matter  of  substance, 
we  must  treat  it  as  not  having  been  done.  In  all  high  felonies, 
and  especially  in  cases  of  murder,  the  presiding  judge  should  see 
that  the  record  is  made  up  properly,  before  the  term  is  over. 

The  sentence  will  be  reversed,  in  order  that  the  case  may  he 
sent  back,  and  an  opportunity  afforded  to  the  prisoner  to  plead 
in  bar  of  it,  but  this  error  will  not  reverse  the  trial  and  convic- 
tion.   JexoeU  V.  Comvwmcealth,  10  Harris,  9-1,  102. 

The  sentence  of  the  court  of  oyer  and  terminer  in  this  case  is 
reversed,  and  it  is  ordered  that  the  record  be  remitted  to  said 
court,  with  an  order  of  procedendo  to  proceed  and  sentence  the 
prisoner  afresh,  in  due  order  and  process  of  law. 


IE 

■  tlfl 

n 

ilW 

m^k 

H 

BeKRY   V8.  CoJrMOXAVEALTir. 
(10  Bush,  Ky.,  15.) 

Homicide  :      Confessions  — Erroneous  charge  —  Dangerous  weapons  —  Self-de- 
fense. 

A  witness  called  to  prove  confession  made  by  the  respondent  in  a  certain  con- 
versation, wlio  testifies  that  "he  could  not  remember  all  the  convei-sations 
that  took  place;  a  gi-eat  many  tliin^irs  were  said  in  tJie  conversation  that  he 
did  not  remember,"  will  not  be  allowed  to  testify  to  what  he  does  remem- 
ber. 

A  confession  cannot  be  proved  by  a  witness  who  does  not  remember  the  substance 
of  all  that  was  said  in  tlie  same  conversation. 


BERRY  t'.  COMMO;^  WEALTH. 


273 


Wlmfc  is  a  dangerous  weapon  is  a  question  of  fact  and  not  of  law. 

A  charge  which  assumes  facts  as  proven  is  en'oneous. 

It  seems  that  if  respondent  agreed  to  fight  and  did  fight  the  deceased,  and  while 
fighting,  something  occun-ecl  to  create  a  reasonable  belief  in  the  respondent 
tliat  he  was  then  in  danger  of  death  or  great  bodily  harm  from  deceased, 
and  if  respondent  then  on  account  of  such  fear  killed  deceased  with  a  knife, 
it  will  be  homicide  in  self-defen.-io,  and  excusable. 


Peters,  J.  Appellant  and  Joseph  Sampson,  between  wbom 
iwry  words  had  passed,  l»y  mutual  consent,  engaged  in  a  person- 
al conflict,  in  svhicli  Sampson  was  stabbed  and  killed.  Appel- 
lant was  indicted  for  homicide,  found  guilty  by  a  jury,  and  the 
court  below,  after  overruling  his  motion  for  a  new  trial,  pro- 
nounced judgment  of  death  against  him,  and,  for  a  reversal  of 
that  judgment,  this  a]\»eal  is  prosecuted. 

Thomas  "Wilson  was  introduced  as  a  witness  on  the  trial  by  tho 
attorney  for  the  commonwealth  to  prove  confessions  made  by 
appellant  in  relation  to  the  homicide,  in  a  conversation  with  ono 
Henry  ^[artin,  in  the  hearing  of  Wilson,  while  he  was  guarding 
appellant,  prior  to  his  examination  before  the  court  for  inquiry. 

On  being  interrogated  by  the  attorney  for  appellant,  "Wilson 
stated  that  "  he  could  not  remember  all  the  conversation  that 
took  place;  a  great  many  things  were  said  in  the  conversation 
that  he  did  not  remember." 

The  attorney  for  the  commonwealth  then  asked  him  "to state 
what  he  did  remember  that  Berry  said."  To  that  appellant's 
attorney  objected;  but  the  court  overruled  his  objection,  and 
permitted  AVilson  to  answer  the  question;  to  which  ruling  of 
the  court,  appellant  by  his  attorney  at  the  limo  excepted;  and 
whether  or  not  the  court  erred  to  the  prejudice  of  appellant,  in 
permitting  the  question  to  l»e  answered  by  "Wilson,  will  be  first 
considered  and  disposed  of. 

The  rule  is  well  settled,  that  if  the  prosecutor  attempts  to  a*  lil 
himself  of  the  confessions  of  the  prisoner,  he  must  take  all  that 
lie  said  at  the  time  on  the  subject.  Greenleaf  says,  "  In  the 
proof  of  confessions,  as  in  the  case  of  admissions  in  civil  actions, 
the  whole  of  what  the  prisoner  said  on  the  subject  at  the  time 
of  making  the  confession  should  be  taken  together."  This  rule 
is  the  dictate  of  reason  as  well  as  of  humanity.  The  prisoner  is 
supposed  to  have  stated  a  proposition  respecting  his  own  con- 
nection with  the  crime;  but  it  is  not  reasonable  to  assume  that 
Vol.  I.  — 18 


:=l-l77?.?  ' 


-   ' 


274 


AMERICAN  CRIMINAL  REPORTS. 


t    I 


K.i 


the  entire  proposition  with  all  its  limitations  was  contained  in 
one  sentence,  or  in  any  particnlar  number  of  sentences,  exclud- 
ing all  other  parts  of  the  conversation. 

As  in  other  cases,  the  meaning  and  intent  of  the  parties  are 
collected  from  the  whole  writing  taken  together,  and  all  the  in- 
struments executed  at  one  time  by  the  parties  and  relatint^totlio 
same  matter  are  equally  resorted  to  for  that  purpose.  So  liere 
if  one  part  of  the  conversation  is  relied  on  as  proof  of  a  confes- 
sion of  crime,  the  prisoner  has  a  right  to  lay  before  the  court  the 
whole  of  what  was  said  in  that  conversation;  not  being  confined 
to  so  much  only  as  is  explanatory  of  the  part  already  proved 
against  him,  but  being  permitted  to  give  evidence  of  all  that  was 
said  upon  that  occasion  relative  to  the  subject  matter  in  issue. 
1  Greenl.  Ev.,  sec.  218. 

If  the  witness  called  to  prove  the  confessions  of  the  prisoner 
says  he  does  not  remember  all  the  conversation,  and  that  a  great 
many  things  were  said  in  the  conversation  which  he  did  not  re- 
member, and  is  still  permitted  to  testify  without  even  stating 
that  he  remembers  the  substance  of  all  that  was  said  at  the  time 
on  the  subject,  it  is  obvious  that  the  rule  is  violated,  and  thelm- 
mane  part  of  it  disregarded. 

The  conrt  below  therefore  erred  in  admitting  "Wilson  to  testi- 
fy as  to  the  confessions  of  the  prisoner,  and  for  the  same  reasons, 
the  evidence  of  Henry  Martin  as  to  confessions  was  incompetent. 

We  do  not  understand  the  order  of  the  court  in  reference  to 
the  challenge  of  jurors  as  the  attorney  for  appellant  seems  to  un- 
derstand it.  That  order  reads  as  follows:  "The  following  ad- 
ditional jurors  were  taken,  to  wit:  John  Miller,  Thomas  IkiIIcw, 
Josejdi  Turner,  Fleming  Shelton,  Madison  Shelton,  Eli  Smith 
&  Jolm  Woodson,  and  James  Taulbee  were  challenged  hy  the 
commonwealth." 

Somejurors  included  and  named  in  this  order  were  certainly 
taken,  because  it  is  so  stated  in  express  terms;  who  or  which  of 
them  were  taken  on  the  panel  must  be  determined  by  the  gram- 
matical and  rational  interpretation  of  the  whole  order. 

Let  the  words  of  the  sentence  be  slightly  transposed  so  as  to 
read  thus:  "  The  following  additional  jurors,  to  wit,  John  Miller, 
Thomas  P»allew,  Joseph  Turner,  Fleming  Shelton,  Madison  Shel- 
ton, Eli  Smith,  were  taken;  and  John  Woodson  and  James  Taul- 
bee were  challenged  by  the  commonwealth."    This  senteuce  cou- 


BERRY  V.  COMMONWEALTH. 


275 


tains  every  word  tliat  is  in  tlic  order  and  not  one  more;  the  words 
composing  each  are  identically  the  same,  and  every  word  has  its 
appropriate  and  ordinary  meaninp;,  and  everyone  of  common  nn- 
derstanding  who  sliould  read  it  wonld  know  that  the  six  j^^tersons 
first  named  in  the  order  were  taken  on  the  jury,  and  the  two  last 
named  were  challenged.  Whereas,  if  the  construction  contended 
for  be  allowed,  the  two  words  "  were  taken  "  must  be  wholly  re- 
jected, as  no  meaning  could  be  given  to  them  if  the  attorney's 
interpretation  prevails.  The  character  "&,"  representing  the 
conjoining  word  "and,"  immediately  following  the  name  Eli 
Smith,  denotes  that  something  is  to  be  add*;d  to  what  preceded; 
which  addition  may  be  "  and  John  Woodson  and  James  Taulbee 
were  challenged,"  etc.,  which  is  consistent  with  both  the  rules  of 
grammar  and  the  propriety  of  speech. 

To  the  first  instruction,  given  on  motion  of  the  attorney  for  the 
commonwealth,  there  seems  to  be  no  available  objection;  but  the 
second  is  erroneous  and  prejudicial  to  appellant,  for  it  not  only 
assumes  as  proved  that  the  knife  was  a  dangerous  weapon  and 
was  concealed  from  the  deceased,  but  it  confines  the  apprehen- 
sion of  the  danger  of  death  or  great  bodily  harm  on  the  part  of 
appellant  to  the  time  when  he  agreed  to  fight  the  deceased,  in- 
stead v,'  also  extending  it  to  the  time  when  the  stabbin<r  was 
done. 

Appellant  may  have  had  no  apprehension  of  serious  injury 
from  deceased  when  he  agreed  to  fiijlit  him;  but  durin<r  the  fiirht, 
something  may  have  occurred  to  create  a  reasonable  belief  that 
he  was  then  in  danger  of  death  or  great  bodily  harm  from  de- 
ceased, and  on  account  of  the  fear  thus  apprehended,  used  his 
knife. 

The  third  instruction,  like  the  second,  excludes  from  the  jury 
the  consideration  of  the  fact  whether  at  the  time  a])pellant  used 
his  knife  lie  had  reasonable  grounds  to  believe,  and  did  believe, 
that  he  was  in  danger  of  death  or  great  bodily  harm  from  de- 
ceased, and  assumes  that  the  knife  was  a  dangerous  weapon,  and 
appellant  concealed  it  from  deceased,  instead  of  submitting  the 
facts  to  the  jury  to  be  determined  by  them  from  the  evidence. 

Instruction  Xo.  4  should  have  been  qualified  by  the  addition 
of  the  following,  after  the  words  stabbed  and  killed  the  deceased: 
''Unless  the  defendant  had  reasonable  grounds  to  believe,  and 
did  believe  at  the  time,  that  he  was  in  danger  of  losing  his  lifo 


!    ! 


f  3 

i  ^1 


276 


AMERICAN  CRIMINAL  REPORTS. 


Mil''- 


or  suffering  great  bodily  harm  from  the  deceased.  And  instruc- 
tion ^o.  5  should  have  been  qualified  in  the  same  way.  Instriic- 
tions  Nos.  6,  7  and  8  seem  to  be  unobjectionable. 

All  those  asked  for  by  appellant  were  given  except  Xo.  3,  and 
that  we  think  was  properly  refused  for  several  reasons.  In  tlie 
first  sentence  of  the  instruction,  the  jury  were  authorized  to  ac- 
quit him  if  they  believed,  from  the  evidence,  that  defendant  was 
under  bonds  to  keep  the  peace,  and  deceased  knew  that  fact,  and 
brought  on  the  difficulty  for  the  purpose  of  killing  him  or  doinc 
him  great  bodily  harm,  although  there  was  not  at  the  time  any 
real  or  apparent  danger  to  defendant  of  death  or  great  bodilv 
harm,  making  the  homicide  excusable  if  the  jury  believed,  from 
the  evidence,  that  the  deceased  brought  on  the  fight  with  the  in- 
tention  of  killing  defendant  or  doing  him  great  bodily  harm,  al- 
though at  the  time  he  gave  the  fatal  stab  there  was  no  reasonable 
ground  to  believe,  and  although  he  might  not  have  believed,  that 
lie  was  in  danger  of  being  killed  or  of  suffering  great  bodily 
harm.  And  by  another  sentence  in  said  instruction,  they  were 
authorized  to  acquit  defendant  if,  from  mere  threats  before  and 
at  the  time  of  the  fight,  and  from  other  circumstances  surround- 
ing  the  parties,  he  had  reasonable  ground  to  believe,  and  did  be- 
lieve that  he  was  in  continued  danfjer,  not  that  he  was  in  dan- 
ger of  losing  his  life  and  suffering  gre-'^t  bodily  harm,  l)ut  any 
danger,  even  slight  personal  injury,  eiti  ••  then  or  at  any  future 
time.  This  was  not  the  law  of  the  case,  and  the  court  below  did 
not  err  in  refusing  to  give  it. 

But  for  the  reasons  before  stated,  the  judgment  is  reversed, 
and  the  cause  is  remanded,  with  directions  to  award  to  appellant 
a  new  trial,  and  for  further  proceedings  consistent  herewith; 
which  is  ordered  to  be  certified  to  the  court  below. 

Judgment  reversed. 


"VVellah  vs.  People. 

(30  Mich.,  16.) 

Homicide  :    Manslaughter  —  Erhlence  —  Practice  —  Duty  of  prosecution  in  call- 
ing witnesses. 

In  a  prosecution  for  homicide,  where  it  iippears  that  no  weapon  was  used,  but 
that  death  resulted  from  a  blow  or  a  kick  not  likely  to  cause  death,  the  of- 
fense is  manslaughter  and  not  murder,  although  the  assault  he  unlawful 


WELLAR  V.  PEOPLE. 


27T 


and  malicious,  unless  the  respondent  (lid  the  act  with  intent  to  cause  death 
or  grievous  bodily  hami,  or  to  periietrate  a  felony,  or  some  act  involving  all 
the  wickedness  of  a  felony. 

Oi  a  trial  for  homicide,  it  is  proper  to  prove  the  relations  in  which  the  deceased 
and  accused  lived  with  one  another. 

On  a  trial  for  homicide,  it  is  proper  to  prove  the  respective  strength  of  the  par- 
ties, but  not  by  evidence  of  si)ecific  acts. 

In  cases  of  homicide,  it  is  the  duty  of  the  prosecution,  orduiarily,  to  call  and 
examine,  on  behalf  of  the  people,  all  those  witnesses  who  were  present  at 
the  transaction,  or  who  can  give  direct  evidence  on  uny  material  branch  of 
it,  whether  such  witnesses  be  favorable  or  unfavorable  to  the  prosecution. 


Error  to  Saginaw  Circuit. 

William  II.  Sweet  and  William  A.  Clark,  for  plaiutift'  in  error. 

Isaac  Jfarston,  Attorney  General,  for  tlie  people. 


Campbkll,  J.  Plaintift'  ir.  error  was  convicted  of  the  murder 
oi  Margaret  Camjyhell,  by  pei?onal  violence  committed  on  July 
25,1873.  They  had  lived  together  for  several  months,  and  on 
the  occasion  of  her  death,  she  had  been  out  on  an  errand  of  her 
own  in  the  neighborhood,  and  on  coming  back  into  the  house, 
entered  the  front  door  of  the  bar-room,  and  fell,  or  was  knocked 
down  upon  the  floor.  "While  on  the  floor,  there  was  evidence 
tending  to  show  that  Wcllar  told  her  to  get  up,  and  kicked  her, 
and  tliat  he  drew  her  from  the  bar-room,  through  the  dining- 
room  into  a  bed-room,  where  he  left  her,  and  where  she  after- 
wards died.  The  injury  of  which  she  died  was  inflicted  on  her 
left  temple,  and  the  evidence  does  not  seem  to  have  been  clear 
Iiow  slie  received  it,  or  at  what  specific  time.  It  was  claimed  by 
the  prosecution  to  have  been  inflicted  by  a  blow  when  she  first 
came  in,  and  if  not,  then  by  a  blow  or  kick  afterwards.  All  of 
the  testimony  is  not  returned,  and  the  principal  questions  arise 
out  of  rulings  which  depend  on  the  assumption  that  the  jury 
might  find  that  her  death  was  caused  by  some  violent  act  of 
Wellar^s/  which  they  must  have  done  to  convict  him.  There 
can  be  no  question  but  that,  if  she  so  came  to  her  death,  he  was 
guilty  of  either  murder  or  manslaugliter.  The  complaint  made 
against  the  charge  is  that  a  theory  was  put  to  the  jury,  on  which 
they  were  instructed  to  find  as  murder  what  would,  or  at  least 
might,  be  manslaughter. 

There  was  no  proof  tending  to  show  the  use  of  any  weapon, 
and,  if  we  may  judge  from  the  charge,  the  prosecution  claimed 


iJ 


1  ■  i 


1   li 


iti-v 


278 


AMERICAN  CRIMINAL  REPORTS. 


tlie  fatal  injury  came  from  a,  blow  of  Wellar''8  fist,  given  as  slie 
entered  the  house.  Tlie  judge  seems  to  have  regarded  it  as 
shown  by  a  prejionderauee  of  proof,  that  the  injury  was  invisible 
when  sho  was  in  the  bar-room,  and  that  thti  principal  dispute 
was  as  to  how  it  was  caused,  whether  by  a  blow,  or  Ivick,  or  bv 
accident.  It  also  appears  that,  if  inflicted  in  that  room,  it  did 
not  produce  insensibility  at  the  time,  if  inflicted  before  the  pris- 
oner dragged  her  into  the  bed-room.  It  doeb  not  appear  from 
the  case  at  what  liour  she  died. 

It  may  be  proper  to  remark  that,  while  it  is  not  desirable  to 
introduce  all  the  testimony  into  a  bill  of  exceptions,  in  a  crim- 
inal case,  it  is  important  to  indicate  in  some  way  the  whole  cliaiii 
of  facts  which  the  evidence  tends  to  prove.  AV^itliout  this,  we 
cannot  fully  appreciate  the  relations  of  many  of  tlie  rulings,  or 
know  what  instructions  may  be  necessary  to  be  sent  down  to  the 
court  below.  The  bill  before  us  is  full  upon  some  things,  but 
leaves  out  some  things  which  it  would  have  been  better  to  in- 
clude. 

Upon  any  of  the  theories  presented,  there  is  no  difHculty  in 
seeing  that  if  Wella)'  killed  the  deceased,  and  if  he  distinctly  in- 
tended to  kill  her,  his  crime  was  murder.  It  is  not  claimed  on 
his  behalf  that  there  was  any  proof  which  could  reduce  the  act 
to  manslaughter,  if  there  was  a  specific  design  to  take  life.  Up- 
on this  the  charge  was  full  and  pointed,  and  is  not  complained 
of.  There  was  no  claim  that  he  had  been  provoked  in  such  a 
way  or  to  such  an  extent  as  to  mitigate  the  intentional  slaying 
to  anything  below  one  of  the  degrees  of  murder. 

But  it  is  claimed  that  although  the  injury  given  was  fatal, 
yet,  if  not  intended  to  produce  any  such  results,  it  was  of  such  a 
character  that  the  jury  might,  and  probably  should,  have  consid- 
ered it  as  resting  on  different  grounds  from  those  which  deter- 
mine responsibility  for  acts  done  with  deadly  weapons  used  in  a 
way  likely  to  produce  dangerous  consequences.  But  the  charge 
of  the  court  did  not  permit  them  to  take  that  view. 

It  will  be  found,  by  careful  inspection  of  the  charge,  that  the 
court  specifically  instructed  the  jury,  that  if  Wcllai'  committed 
the  homicide  at  all,  it  would  be  murder,  and  not  manslaughter, 
unless  it  was  committed  under  such  extreme  provocation  as  U 
recognized  in  the  authorities  as  sufficient  to  reduce  intentional 
and  voluntary  homicide,  committed  with  a  deadly  weapon,  to 


[f    i 


WELLAR  V.  PEOPLE. 


279 


that  degree  of  crime.  And  in  this  connection,  the  charge  fur- 
ther given  that,  if  the  intent  of  the  respondent  was*  to  commit 
hodily  liarm,  he  was  responsible  for  the  result,  because  lie  acted 
wilfiilly  and  maliciously  in  doing  the  injury,  necessarily  led  to 
a  conviction  of  murder,  because  there  was  no  pretense  of  any 
provocation  of  that  kind. 

liliUislaughter  is  a  very  serious  felony,  and  may  be  punished 
severely.  The  discretionary  punishment  for  murder  in  tiie  sec- 
ond degree  comes  considerably  short  of  the  maximum  punish- 
ment for  manslaughter.  But  the  distinction  is  a  vital  one,  rest- 
iii"  chiefly  on  the  greater  disregard  of  human  life  shown  in  the 
hi"]ier  crime.  And  in  determining  whether  a  person  who  has 
killed  another,  without  meaning  to  kill  him,  is  guilty  of  murder 
or  manslaughter,  the  nature  and  extent  of  the  injury  or  wrong 
which  was  actually  intended  must  usually  be  of  controlling  im- 
portance. 

It  is  not  necessary  in  all  cases  that  one  held  for  murder  must  have 
iutended  to  take  the  life  of  the  person  he  slays  by  his  wrongful 
act.  It  is  not  always  that  he  must  have  intended  a  personal  in- 
jury to  such  person.  But  it  is  necessary  that  the  intent  with 
which  he  acted  shall  be  equivalent  in  legal  character  to  a  crim- 
inal purpose  aimed  against  life.  Generally  the  intent  must  have 
Ijcen  to  commit  either  a  specific  felony,  or  at  least  an  act  involv- 
ing all  the  wickedness  of  a  felony.  And  if  the  intent  be  directly 
to  produce  a  bodily  injury,  it  must  be  such  an  injury  as  may  be 
expected  to  involve  serious  consequences,  either  periling  life  or 
leading  to  great  bodily  harm.  There  is  no  rule  recognized  as 
authority  which  will  allow  a  conviction  of  murder  where  a  fatal 
result  was  not  iitixjftded,  unless  the  injury  intended  was  one  of  a 
very  serious  character,  which  might  naturally  and  commonly  in- 
volve loss  of  life,  or  grievous  mischief.  Every  assault  involves 
bodily  harm.  But  any  doctrine  which  would  hold  every  assail- 
ant as  a  nnu'derer,  where  death  follows  his  act,  would  be  barbar- 
ous and  unreasonable. 

The  language  used  in  most  of  the  statutes  on  felonious  as- 
saults is,  an  intent  to  do  "  grievous  bodily  harm.  Carr.  Sup., 
p.  237.  And  even  such  an  assault,  though  "  unlawfully  and  ma- 
liciously" made,  is  recognized  as  one  where,  if  death  followed, 
the  result  would  not  necessarily  have  been  murder.  Id.  Our  own 
statutes  have  made  no  provision  for  rendering  an  assault  fcloni- 


■  \ 


i 


im 


AMERICAN  CRIMINAL  REPORTS. 


ons,  unless  committed  with  a  daiigerons  weapon,  or  with  an  in- 
tont  to  comniit  some  felony.     Conjp.  L.,  eh.  244. 

In  general,  it  has  been  held  that  where  the  assault  is  not  com- 
mitted with  a  deadly  weapon,  the  intent  must  Ikj  clearly  feloni- 
ous, or  the  death  will  subject  only  to  the  charge  of  manslangliter. 
The  presumption  arising  from  the  character  of  the  instrument 
of  violence  is  not  conclusive  in  either  way,  b\it  where  guch 
weapons  are  \ised  as  do  not  usually  kill,  the  deadly  intent  ought 
to  be  left  in  no  doubt.  There  are  cases  on  record  where  death 
by  beating  and  kicking  has  been  held  to  warrant  a  verdict  of 
murder,  the  murderous  intent  being  found.  ]Jut  wliere  there 
Avas  no  such  intent,  the  ruling  has  been  otherwise.  In  State  v. 
3lcNah,  20  X.  II.,  IGO,  it  is  held  that  unless  the  uidawful  act  of 
violence  intended  was  felonious,  the  offense  was  manshiugliter. 
The  same  doctrine  is  laid  down  in  State  v.  Sinit/i,  32  ^le.,  3G9. 
That  is  the  statutory  rule  in  Xew  York  and  in  some  other  states. 

The  wilful  use  of  a  deadly  weai)on,  without  excuse  or  provo- 
cation, in  such  a  manner  as  to  imperil  life,  is  almost  universally 
recognized  as  showing  a  felonious  intent.     See  2  Eish.  Cr.  L, 
§§  CSO,  081.     But  where  the  weapon  or  implement  used  is  not 
likely  to  kill  or  to  maim,  the  killing  is  held  to  be  manslaughter, 
unless  there  is  an  actual  intent  which  shows  a  felonious  purpose. 
See  Tamer  s  Case,  1  Raym.,  144,  where  the  servant  was  hit  on 
the  head  with  a  clog;  State  v.  Jan'ott,  1  Ired.,  70,  where  the  Wow 
was  with  a  hickory  stick;  Ilollt/  v.  State,  10  Ilumj)!!.,  141,  where 
a  boy  threw  a  stone;  Hex  v.  Kclhj,  1  Moo.,  C.  C,  113,  where  it 
was  uncertain  whether  a  person  was  killed  by  a  blow  witli  the 
iist,  which  threw  him  on  a  brick,  or  by  a  blow  from  a  brick, 
and  the  court  held  it  a  clear  case  of  manslaughter.     In  Darnj 
V.  People,  10  N.  Y.,  120,  the  distinctions  arc  mentioned  and  re- 
lied upon,  and  in  the  opinion  of  Pakkkk,  J.,  there  are  some  re- 
marks very  applicable.     In  the  case  of  Com.  v.  Wehster,  5  Cash., 
205,  the  rulings  of  which  have  been  regarded  as  going  beyond 
law  in  severity,  this  question  is  dealt  with  in  accordance  with 
the  same  views,  and  quotations  are  given  from  East  to  the  same 
purport. 

The  case  of  death  in  a  prize  fight  is  one  of  the  commonest 
illustrations  of  manslaughter,  where  there  is  a  deliberate  arrange- 
ment to  fight,  and  where  great  violence  is  always  to  be  expected 
from  the  strength  of  the  parties  and  the  purpose  of  fighting  till 


\  U 


1  iS 


WELLAR  V.  PEOPLE. 


281 


one  or  tho  other  is  unable  to  continue  the  contest.  A  duel  with 
dtadly  weapons  renders  every  killing  murder;  but  a  fight  with- 
out weapons,  or  with  weapons  not  deadly,  leads  only  to  man- 
bliiu"liter,  unless  death  is  intended.  1  East  P.  C,  270;  Mur- 
nhfs  Cane,  G  0.  &  P.,  103;  Utmji'avc's  Case  5  id.,  170. 

Tlic  case  of  Commomoealth  v.  Fox,  7  Gray,  5S5,  is  one  resem- 
bliii"  the  present  in  several  resj^ects,  in  which  the  otleuso  waa 
held  iimnslanghter. 

The  jury  were  sufficiently  and  rightly  charged  upon  the  ex- 
tent of  the  respondent's  liability  for  any  intended  killing.    And 
if  respondent  wilfully  and  violently  kicked  the  deceased  in  such 
away  as  he  must  liave  known  would  endanger  her  life,  and  her 
life  was  destroyed  in  that  way,  an  actual  intention  of  killing 
would  not  be  necessary,  as  in  such  case  the  death  would  have 
been  a  result  he  might  fairly  be  held  to  regard  as  likely.    But  it 
was  certainly  open  to  him  to  claim  that,  whatever  may  have  been 
the  cause  of  death,  he  did  nothing  wliich  was  designed  to  pro- 
duce any  serious  or  fatal  mischief,  and  that  the  injury  from 
which  the  deceased  came  to  her  death  was    not  intentionally 
aimed  at  a  vital  spot,  or  one  where  the  consequences  would  be 
probably  or  manifestly  dangerous.     We  have  no  right  to  say 
tl:at  there  was  no  room  for  a  verdict  of  manslaughter,  and  the 
effect  of  the  charge  was  to  deny  this. 

Most  of  the  other  questions  are  of  such  nature  that,  if  arising 
on  anodier  trial,  they  will  be  presented  in  a  more  guarded  form. 
We  have  no  doubt  it  is  i)roper  to  show  the  previous  relations  of 
"Wellar  and  the  deceased,  and  that  they  may  be  of  more  or  less 
importance  in  explaining  conduct  and  motives.  We  are  also 
inclined  to  think  it  would  not  be  incompetent  to  sliow  the  physical 
Ptreiigth  of  the  respective  parties.  It  is  objectionable,  however, 
to  prove  these  things  by  evidence  of  specific  acts,  especially  where 
inferences  might  be  drawn  unfavorable  to  the  prisoner's  charac- 
ter, which  would  not  be  relevant  to  the  charge.  These  inquiries 
should  be  general,  and  not  leading,  and  should  not,  where  it  can 
be  avoided,  introduce  irrelevant  matter. 

We  also  think  it  was  not  correct  practice  to  compel  the  de- 
fense, instead  of  the  prosecution,  to  call  the  witness  Maladay. 
It  appeared  that  he  was  one  of  two  persons  present  at  the  occur- 
rence for  which  Wellar  was  on  trial,  and  it  further  appeared  that 
liis  name  was  endorsed  on  the  information  as  one  of  the  people's 


i 


SI 

(I 


:    I 


282 


AMERICAN  CRIMINAL  REPORTS. 


P'  •' 


iil 


■ ; 


Wi 

% 

"■% 

■'i 

i.'     ■ 

-1 

?' 

-:| 

witnesses,  so  that  he  wns  not  unknown  to  the  prosecution.   It 
devolves  on  tlio  prosecutor  in  a  case  of  honiieiOe,  to  connect  tlio 
prisoner  with  the  injury  which  is  chvinied  to  have  been  tliu  mm 
of  death,  and  to  ^ive  all  the  testimony  in  his  power  ^oln<^  to  tlio 
proof  of  the  corjms  (fclirtl.     The  fact  tliat  the  name  of  fi  witnesj 
is  endorsed  on  the  infonnation  does  not  of  itself  involve  any 
necessary  oliligation  to  do  any  more  than  have  the  witness  in 
court  ready  to  he  examined.     lice  v.  ShiiotuAs,  1  C.  &  P.,  84- 
Jie,c  V.  JJc'fzh'}/,  4  id.,  2'->0;  Jief/.  v.  Bull,  0  id.,  22;  lieg.  v.  liodll, 
0  id.,  18G;  liiij.  v.  Vincent,  9  id.,  91;  lie,c  v.  JIuri'tf<,  7  id., 5S1. 
But  in  cases  of  homicide,  and  in  others  where  analogous  reasons 
exist,  those  witnesses  who  were  present  at  the  transaction,  or 
who  can  give  direct  evidence  on  any  material  branch  of  it,  slioiiM 
always  bo  called,  unless,  possibly,  where  too  numerous.     If  tliere 
is  any  other  admissible  reason,  none  has  yet  been  passed  upon, 
and  none  has  been  presented  which  could  apj)ly  to  the  case  be- 
fore us.     If  some  one  were  to  come  forward  and  assert  his  pres- 
ence when  he  had  not  been  seen  or  noticed  by  others,  there  might 
be  room  for  questioning  his  position.     JJut  where  there  is  no 
doubt  or  dispute  as  to  the  fact  of  presence,  no  such  question  can 
arise,  and  the  only  objection  then  will  be,  that  he  may  not  be 
favorable  to  the  prosecution.     I>ut  this  is  no  answer,  any  more 
than  it  would  be  if  a  8ubscrii)lng  witness  stood  in  a  similar  posi- 
tion.    As  explained   in  Ilurd  v.  Peojde,  25  jVIich.,  4(J(5,  and  in 
the  English  cases  there  reterred  to,  a  ])ublic  prosecutor  is  not  a 
plaintiti''s  attorney,  but  a  sworn  minister  of  justice,  as  much 
bound  to  protect  the  innocent  as  to  pursue  the  guilty,  and  helms 
no  right  to  sui)press  testimony.     The  fact  that  he  is  compelled 
to  call  these  witnesses,  when  he  may  not  always  find  them  dis- 
posed to  frankness,  entitles  liim,  when  it  appears  necessary,  to 
jjress  them  with  searching  questions.     Jieg.  v.  Hall,  8  C.  k  P., 
745;  Re(j.  v.  C/ufj)7nan,  8  id.,  558.     J>y'  this  means,  and  by  lay- 
ing all  the  facts  before  the  jury,  they  are  quite  as  likely  to  get 
at  the  truth  as  if  he  M'ere  allowed  to  impeach  the  witnesses  who 
disappointed  him.     Any  intelligent  jury  will  readily  discover, 
whether  a  witness  whom  the  prosecutor  has  been  compelled  to 
call  is  fair  or  adverse,  and  can  make  all  proper  allowance  for 
bias,  or  any  other  influence  which  may  affect  his  credit.     If  tliere 
is  but  a  single  eye  witness,  he  could  not  be  impeached,  and  yet 
the  danger  of  falsehood  is  quite  as  great,  and  the  chances  of  its 


LYNCH  f.  COMMONWEALTH. 


2S3 


correction  much  less  tlmn  where  there  are  two,  niul  both  nro 
called.  And  if  such  a  witness  need  not  be  called  by  the  jiroBecu- 
tion  the  defense  cannot  imjieach  him,  and  must  either  call  him, 
and  run  the  risk  of  finding  him  a<j;ain8t  them,  or,  if  they  jMl  to 
cull  liiiii,  ht^  i>rejndiced  by  the  argument  that  they  have  omitted 
to  prove  what  was  in  their  powei",  and  must  have  done  so  because 
they  dared  not  call  out  the  facts.  There  is  no  fairnef-  in  such  u 
practice,  and  )•  ]>r.>secutur  should  not  be  permitted  to  resort  to 
it.  He  is  not  resj)onsible  for  the  shortcomings  of  his  witnesses, 
and  he  is  responsible  for  any  obstacle  thrown  in  the  way  of  clicit- 
iuj,'  all  the  facts. 

The  judgment  must  be  reversed,  and  a  new  trial  granted.  The 
respondent  to  bo  remanded  to  the  custody  of  the  sheritF  of  Sag- 
inaw county. 

Coom;y  and  Cuuistiancv,  JJ.,  concurred. 
Gkavks,  C.  J.,  did  not  sit  in  this  case. 


Lynch  vs.  CoMMomvKALTir. 

(77  Ta.  St.,  2C'.) 

Homicide :   Provoctitlon — MamlaugUtcr  —  Insciu ity  —  Summon nigjitfij. 

Any  error  in  tliis  Ciise  in  the  suninioiung  of  the  juiy  held  cured  by  the  statute 
of  luuciulnu'iit. 

Wliere  the  iJrisoiu.'r,  who  lived  \\\i\\  Ilia  sLstor,  a  iniuTied  woman,  went  homo 
late  at  nif,^it  luid,  heiiriiig  a  noise  in  his  sister's  room,  became  suspicious  tliat 
somptiiint,'  wrontj  wa.s  f^oinj^  on;  and,  after  listening  awiiile,  becoming  con- 
\inced  that  his  suspicions  were  well  founded,  took  out  his  knife  and  opened 
it,  broki;  opi'n  the  door,  and  found  liis  sister  in  the  room  in  her  niglit  dress, 
anil  dccciised  in  tlie  bed,  and,  being  greatly  em'aged,  killed  the  lululterer, 
it  Wiis  held,  a,s  a  matter  of  law,  that  this  was  not  such  provocation  as  reduced 
the  killinjf  to  miuislaugiiter. 

11  seems  tiiat  seeing  a  miuried  sister  in  the  act  of  adultery  is  not  such  provoca- 
tion as  to  reduce  the  killing  of  the  adulterer  to  manslaughter. 

Where  insanity  is  relied  on  as  a  defense  to  a  chiu'ge  of  murder,  the  defendant 
must  satisfy  the  juiy  tiiat  he  was  insane  at  the  time  of  the  killing.  A  doubt 
as  to  liis  sanity  is  not  sutHcient. 

Read,  C.  J.  By  the  second  section  of  the  Act  of  the  10th 
of  April,  1867,  it  is  made  the  duty  of  the  jury  commissioners, 
president  judges,  or  additional  judges  of  their  respective  dis- 
tricts, to  meet  at  the  seat  of  justice  of  the  county  at  least  thirty 


I'  •, 


284 


AMERICAN  CRIMINAL  REPORTS. 


t;,"  t, 


days  before  the  first  term  of  the  court  of  connnoii  jdeas,  in 
every  year,  and  select  the  jurors  agreeably  to  the  provisions  of 
said  section,  who  are  to  serve  as  jurors  in  the  several  courts  of 
such  county  during  that  year.  The  names  of  the  persons  so  se- 
lected shall  be  placed  by  them,  or  a  majority  of  them,  in  tlie 
proper  wheel,  in  the  mode  and  manner  directed  by  law.  Tlie 
third  section  describes  how  the  jury  commissioners  and  sheriff 
shall  draw  from  the  proper  jury  wheel  the  ditt'erent  panels  of 
jurors. 

The  precepts  in  this  case,  and  the  venires  for  the  grand  and 
petit  or  traverse  jurors,  were  issued  on  the  2d  of  April,  1S72, 
and  on  the  loth  of  the  same  month,  were  returned  in  due  form 
by  the  sheriff"  and  jury  commissioners,  by  wliom  the  names  of 
the  grand  and  traverse  jurors  were  drawn  from  the  jury  wheel 
in  due  form  of  law.  The  error  assigned  in  both  cases  is  the 
same;  the  clerical  error  of  using  the  words  "commissioners of 
said  county,"  instead  of  "jury  commissioners."  Everything 
else  in  the  whole  proceeding  was  right,  and  the  alleged  error  was 
not  discovered  until  several  months  after  the  trial. 

These  alleged  defects  or  errors  are  cured  by  the  o'dd  section  of 
the  Criminal  Procedure  Act  of  the  31st  of  Ik[arch,  18(10,  wliich 
enacts  that  "  no  verdict  in  any  criminal  court  shall  be  set  asiJe, 
nor  shall  any  judgment  be  arrested  or  reversed,  nor  sentence  de- 
layed for  any  defect  or  error  in  the  jn'a'('ij)e  issued  from  any 
court,  or  the  venire  issued  for  the  summoning  and  returning  of 
jurors,  or  any  defect  or  error  in  drawing  or  retui-ning  any  juror 
or  panel  of  jurors,  but  a  trial  or  agreement  to  try  on  the  merits, 
or  pleading  guilty  on  the  general  issue  in  any  case,  shall  Lea 
waiver  of  all  error  and  defects  in  or  rel.ative  or  appertaining  to 
tlie  said  precept,  venire,  drawing,  or  summoning  and  returning 
of  jurors." 

Ambrose  E.  Lynch  was  indicted  for  the  murder  of  "William 
Iladfield,  on  the  night  of  the  12th  of  June,  1872,  by  stahbing 
liim  with  a  knife,  and  was  tried  in  July,  of  the  same  year,  and 
convicted  of  murder  in  the  first  degree.  The  circumstances  at- 
tending the  murder  are  few,  and  may  be  told  very  brietly.  The 
sister  of  the  plaintift"  in  error  lived  in  a  small  house  in  Alle- 
gheny City,  of  whom  the  defendant  Lynch  was  a  guest.  Late 
at  night  Lynch  came  in  by  a  side  door,  and  was  in  only  a  few 
minutes  when  he  heard  a  noise;  listened,  and  heard  a  creaking; 


LYNCH  t'.  COMMONWEALTH. 


2S3 


took  out  his  knife  and  opened  it;  he  put  hie  shoulder  to  the  door 
and  shoved  it;  it  did  not  go  in  the  first  time;  put  his  shoulder 
to  it  the  second  time  and  it  went  in,  and  he  3aw  his  sister  get- 
tinfoutof  bed.  lie  struck  the  deceased  twice  in  the  back,  in 
the  bed,  with  his  knife,  and  a  third  time,  when  on  the  floor,  in 
(he  breast.  This  last  was  the  mortal  wound,  of  which  Iladfield 
died  between  twelve  and  one  o'clock  the  same  night.  We  have 
omitted  the  profane  and  blasphemous  language  made  use  of  by 
tlie  defendant  Lynch. 

^Ye  have  read  over,  with  great  care,  the  very  able  charge  of 
Judge  Starrktt,  who  explains  very  fully  to  the  jury  the  differ- 
ent degrees  of  felonious  homicide,  murder  in  the  first  degree, 
murder  in  the  second  degree,  voluntary  and  involuntary  man- 
slaughter. 

This  brings  us  naturally  to  a  part  of  the  charge  following  this 
explanation,  which  is  assigned  as  the  fifth  error.  It  is  evident, 
from  the  language  used,  that  the  prisoner's  counsel  was  endeav- 
oring to  reduce  the  crime  to  that  of  voluntary  manslaughter, 
with  which  the  court  certainly  did  not  agree.  "  It  is  claimed," 
said  the  learned  judge,  "  by  the  prisoner  in  this  case,  that  on 
coiuir  to  his  sister's  house  at  a  late  hour  in  the  night,  he  heard 

O  O  CD  ^ 

a  noise  in  her  room;  suspected  that  something  wrong  was  going 
on  there;  listened  awhile,  and  becoming  convinced  that  his  sus- 
picions were  well  founded,  he  took  out  his  knife  and  opened  it, 
])ut  his  shoulder  to  the  door,  forced  it  in,  and  found  his  sister 
there  in  her  night  dress,  and  the  deceased  in  the  room  with  her; 
that  he  was  greatly  excited  and  enraged,  and  in  the  heat  of  pas- 
sion thus  generated,  he  stabbed  the  deceased  twice  in  the  back 
and  once  in  the  breast.  Assuming  all  this  to  be  true,  does  it 
amount  in  law  to  suflicient  cause  of  provocation  to  reduce  the 
killing  to  manslaughter?  We  are  of  opinion  that  it  does  not; 
that  there  is  nothing  in  these  circumstances,  as  they  are  claimed 
to  exist,  by  the  prisoner,  that  would  reduce  the  grade  of  the  of- 
fense to  voluntary  manslaughter.  It  is  the  duty  of  the  court  to 
say,  as  a  matter  of  law,  what  fact  or  facts  will  amount  to  suffi- 
cient legal  |)rovocation  if  they  u/o  found  by  the  jury.  In  other 
words,  it  is  for  the  jury  to  find  what  the  facts  are,  and  for  the 
court  to  say  what  effect  shall  be  given  them.  Assuming,  then, 
the  facts  to  be  as  claimed  by  the  prisoner,  in  this  regard,  we  say 
that  they  do  not  amount  to  sufficient  or  legal  provocation,  such 


•^i 


'      I- 


'"»< 


1     . 


/     '' 


I    ,       i'T 


286 


AMERICAN  CRIMINAL  REPORTS. 


as  would  reduce  the  grade  of  a  felonious  homicide  to  man- 
slaughter. 

In  all  this  there  Avas  clearly  no  error.  The  third  error  as- 
signed is,  to  the  answer  of  the  court  to  the  defendant's  first  point 
which  was,  "  that  if  on  the  night  of  the  killing,  defendant  found 
or  supposed  he  found,  the  deceased  in  bed  with  defendant's  mar- 
ried sister,  and  was  thereby  so  much  excited  as  fur  tlie  time  to 
overwhelm  his  reason,  conscience  and  judgment,  and  cause  him 
to  act  from  an  uncontrollable  and  irresistible  impulse,  the  law 
will  not  hold  him  responsible." 

This  seems  very  vague  and  uncertain,  but  the  court  say,  "as 
the  point  seems  to  amoiint  to  the  proposition,  tluit  if  the  pris- 
oner was  temporarily  insane  at  the  time  he  did  the  cuttintj,  he 
is  not  guilty  of  any  legal  offense,  it  is  affirmed  as  an  abstract 
principle  of  law.  If  the  defendant  was  actually  insane  at  the 
time,  this  of  course  relieves  him  from  criminal  responsibility, 
from  whatever  cause  the  insanity  arose. 

But  the  jury  must  not  confound  anger  or  wrath  Avitli  actual 
insanity;  because,  however  absurd  or  \in  reason  able  a  man  may 
act  when  exceedingly  angry,  either  witli  or  without  cause,  if  his 
reason  is  not  actually  dethroned,  it  is  no  legal  excuse  for  viola- 
tion of  law."    There  is  no  error  in  this  answer. 

The  fourth  error  assigned  is  to  the  answer  to  the  defendant's 
second  point,  which  is:  "That  if  the  jury  have  a  reasonable 
doiibt  as  to  the  condition  of  defendant's  mind,  at  the  time  the 
act  was  done,  he  is  entitled  to  the  benefit  of  such  doubt,  and  they 
cannot  convict." 

As  to  the  second  point,  the  court  said,  "  the  law  of  the  state  is, 
that  when  the  killing  is  admitted,  and  insanity  or  want  of  legal 
responsibility  is  alleged  as  an  excuse,  it  is  the  duty  of  the  defend- 
ant I  J  satisfy  the  jury  that  insanity  actually  existed  at  the  time 
of  the  act,  and  a  doubt  as  to  such  insanity  will  nut  justify  the 
jury  in  acquitting  upon  that  ground.  The  law  presumes  sanity 
when  an  act  is  done,  if  no  insanity  is  shown  by  the  evidence, 
and  when  it  appears  a  man  was  sane  shortly  j)rece(ling  the  act, 
and  shortly  after,  the  presumption  of  sanity  exists  at  the  time 
of  the  act,  and  no  jury  have  a  right  to  assume  otherwise,  un- 
less evidence  in  connection  with  the  act  convinces  them  that  the 
defendant  was  actually  insane  at  the  moment  the  act  was  com- 
mitted.    This  point  is  refused,  and  rightly,  and  it  needs  no  ar- 


RAFFERTY  v.  PEOPLE. 


28T 


miment  to  show  that  thp  court  were  entirely  correct  in  their 
ruling  and  answer. 

Tlie  sixth  error  is  not  sustained,  for  it  is  clear  the  ingredients 
necessary  to  constitute  murder  in  the  first  degree  were  proved 
to  exist,  and  in  determining  this  to  be  the  case,  we  have  reviewed 
both  the  law  and  the  evidence. 

Sentence  affirmed  and  record  remitted. 


!    '1  ri 


Kafferty  vs.  People. 
(69  m.,  111.) 

Homicide  :    Arrest  —  Warrant  issued  in  blank. 

On  a  trial  for  murder,  where  evidence  was  given  by  the  respondents  that 
tlie  horaicido  was  comuiitt<Hl  by  the  rosiiondent  in  resisting  an  utterly  illegal 
and  unjustifiable  arrest,  attemptod  by  the  deceased  who  was  a  pohceman, 
it  was  hchl  that  the  oflFense  was  no  more  than  nmnslaughter,  and  that  the 
court  en'i'd  in  cxdiuling  this  e\'idonce  from  the  consideration  of  the  jurj*. 

A  warrant  signed  by  a  magistrate  in  blank  and  aftenviirds  filled  up  by  a  po- 
lice sergoant  >vith  whom  it  had  Ijeen  left  has,  altiiough  regular  on  its  face, 
no  legal  foire  or  validity  whatever,  but  is  an  absolute  nullity;  and  if  an  of- 
ficer is  killed  in  attempting  to  nuike  any  arrest  under  it,  the  oSense  is  but 
niansliuighter. 

Scott,  J.  dissenting. 

McAllisteu,  J.  The  plaintiff  in  error  having  been  found 
jjuilty  upon  .an  indictment,  for  the  murder  of  one  Patrick 
U'Meura,  and  sentenced  to  suft'er  thn  j)enalty  of  deat!,,  has 
caused  the  evidence,  together  with  the  rulings  of  the  court  and 
exceptions  taken,  to  be  preserved  in  a  bill  of  exception?,  and 
brought  the  record  to  this  court  for  review,  upon  writ  of  error. 

Various  errors  have  been  assigned,  among  which  is  the  exclu- 
sion of  proper  evidence,  and  overruling  his  motion  for  a  new 
trial. 

"We  propose  to  consider  but  one  question  presented,  and  that 
is  one  vitally  att'ecting  the  merits  of  the  case,  and  which  we  can- 
not disregard  without  overriding  a  jilaiii  and  well  settled  rule  of 
law,  based  upon  a  foundation  no  less  solid  than  the  natural 
rights  of  personal  liberty  and  security  —  rights  held  sacred  by 
the  coiuniou  law,  and  recognized  and  protected  by  constitutional 
euactineuts. 


MMHHBMI 


288 


AMERICAN  CRIMINAL  REPORTS. 


' . 


fu 


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■  ^:             ;  ■'  ', 

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■  \    -  I'i 

(■if 


The  record  contains  evidence  tending  to  show  that  the  liomi. 
cide  was  committed  by  the  prisoner  in  resisting  the  deceased 
who  was  a  policeman  of  the  city  of  Chicago,  whilst  engaged  in 
connection  with  another  policeman,  whom  he  was  aiding,  in  tlic 
act  of  committing  an  illegal  and  wholly  unjustifiable  invasion 
of  plainfiff's  liberty,  by  attempting  to  seize  his  person  and  take 
him  off  to  prison,  without  any  authority  in  law  so  to  do. 

The  circumstances,  which  the  evidence  tends  to  prove,  were 
briefly  these:  At  a  little  after  midnight  of  the  night  of  the  4tli 
and  in  the  early  morning  of  the  5th  of  August,  1872.  the  pris- 
oner was  sitting  quietly  and  peaceably  by  a  table  in  a  saloon 
when  O'Meara,  the  deceased,  and  another  policeman  of  the  name 
of  Scanlan,  came  in.  O'Meara  immediately  ])ointed  the  pris- 
oner  out  to  Scanlan.  The  prisoner  upon  seeing  O'Meara,  ad- 
dressed him  in  a  friendly  manner,  asking  him  to  take  soniet]iin<' 
to  drink,  or  a  cigar,  which  was  declined.  Scanlan  then  went  di- 
rectly up  to  the  prisoner,  tapped  him  on  the  shoulder,  and  told 
him  he  had  a  warrant  for  him.  The  prisoner  denuvnded  the 
reading  of  the  warrant,  which  was  done,  and  the  prisoner  ap- 
parently submitted  to  the  arrest;  but  immediately  threatened  to 
shoot  the  first  man  who  should  lay  a  hand  upon  him.  O'Meara, 
who  came  with  a  slnng  shot  hung  to  his  wrist,  stationed  himself 
at  the  outer  door  to  prevent  prisoner's  escape,  while  Scanlan 
kejit  himself  in  position  to  guard  a  back  door. 

All  this  occurred  in  a  brief  space  of  time;  and  while  O'Meara, 
with  a  slungshot  suspended  from  his  wrist  was  thus  guarding 
the  door  which  led  into  the  street,  the  prisoner  shot  him  with  a 
pistol,  inflicting  a  mortal  wound.  There  is  not  the  slightest  prc- 
tense  in  the  case  that  the  prisoner  had  been  accused  or  suspected 
of  having  (jommitted  any  felony,  or  that  he,  at  any  time,  was  in 
the  act  of  committing  a  misdemeanor,  or  even  any  violation  of  a 
city  ordinance.  The  facts  appearing  from  the  tendency  of  the 
evidence  are,  that  the  homicide  was  committed  while  the  de- 
ceased was  assisting  in  the  arrest  of  the  prisoner  under  the  cir- 
cumstances stated.  Xo  attempt  was  made  by  the  state's  attor- 
ne}',  on  the  trial,  to  show  that  the  prisoner  had  been  charged 
with  the  commission  of  any  felony,  or  to  prove  that  either  of 
the  policemen  in  question  liad  in  their  possession,  at  the  time, 
any  lawful  writ  or  warrant  authorizing  the  prisoner's  arrest. 
But  the  counsel  for  the  prisoner  caused  to  be  produced  and 


RAFFERTY  t\  PEOPLE. 


2S9 


identified  the  supposed  warrant  which  the  policeman  had,  and 
upon  which  the  arrest  was  made,  and  establislied,  by  undisputed 
evidence,  that  police  sergeant  Hood  had  in  his  drawer  a  number 
of  blank  summonses  and  warrants,  which  had  been  signed  by 
police  magistrate  Banyon,  and  which  the  sergeant  had  been  ac- 
customed to  fill  up  in  the  absence  of  the  magistrate,  and  use, 
from  time  to  time,  as  exigencies  might  require.  That  from  these 
blanks  he,  on  Sunday,  August  4,  1872,  filled  up  the  one  in  ques- 
tion, putting  the  prisoner's  name  into  it,  in  the  absence  of  the 
magistrate;  and  to  avoid  the  appearance  of  having  been  issued 
on  Smiday,  it  was  dated  the  5th  of  August.  This  paper  was 
delivered  to  Scanlan,  and  he  and  O'Meara  proceeded,  as  the  evi- 
dence clearly  sliows,  to  hunt  for  the  prisoner  all  that  Sunday 
niclit,  with  tl;e  intention  of  arresting  him  on  that  pretended  pro- 
cess, as  soon  as  midnight  was  passed,  if  they  could  find  him. 
Wlien  the  supposed  warrant  was  introduced  in  evidence,  and 
the  testimony  showing  how  it  was  brought  into  existence  was 
given,  the  court,  upon  the  motion  of  the  state's  attorney,  ex- 
cluded the  warrant  and  all  evidence  relating  to  it,  from  the  jury, 
as  incompetent;  to  which  the  prisoner's  counsel  excej)ted. 

Tlie  supp(»sed  warrant,  as  filled  out  by  the  sergeant,  was  di- 
rected to  any  constable  or  policeman  of  the  city  of  Chicago, 
commanding  them  to  take  the  body  of  one  Christopher  Ilafferty, 
and  bring  him  forthwith  before  the  magistrate,  unless  special 
bail  should  be  entered;  and  if  such  bail  should  be  entered,  then 
to  command  liafl'erty  to  appear  before  such  magistrate  at  eight 
o'clock  A.  M.,  on  the  10th  day  of  August,  1S72,  at  his  office, 
etc.,  "to  answer  the  complaint  of  the  city  of  Chicago  in  a  plea  of 
debt  for  a  failure  to  pay  said  city  a  certain  demand,  not  exceed- 
ing one  hundred  dollars,  for  a  violation  of  an  ordinance  of  said 
city,  entitled  an  ordinance  for  revising  and  consolidating  the 
general  ordinances  of  the  city  of  Chicago,  passed  October  23, 
1S65,  to  wit:  For  committing  a  breach  of  the  2^(^ficc^  and  mak- 
mjan  improper  noise  and  diistxirhance  in  said  citi/,  or  for  us- 
ing  threatening  or  ahusive  language  towards  another  j^erson, 
tending  to  a  breach  of  the  peace,  in  violation  of  section  29  of 
chapter  25  of  said  ordinance,  and  hereof  make  due  return  as 
the  law  directs. 

"Given  under  my  hand  and  seal  this  5th  day  of  August,  1872. 
"[seal.]  A.  H.  Banyon,  Justice  of  the  Peace.^^ 

Vol.  I.  — 19 


w^^^mgi 

1  i^l^l 

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290 


AMERICAN  CRIMINAL  REPORTS. 


i 


!«.'' 


The  sixth  section  of  chapter  eleven  of  the  charter  of  Chicago 
(Gary's  Laws,  114)  declares  as  follows:  "In  all  prosecutions 
for  any  violation  of  any  ordinance,  by-law,  police  or  other  re^ii. 
lation,  the  first  process  shall  be  a  summons,  unless  oath  oraMr. 
onatioii  he  made  for  a  loarraiit,  as  in  other  cases^  And  by 
section  1  of  chapter  33  of  ordinances  (Gary's  Laws,  306),  it  is 
provided  that  the  several  members  of  the  police  force  "slmil 
have  power  to  arrest  all  persons  in  the  city  found  in  the  act  of 
violating  any  law  or  ordinance,  or  aiding  and  abetting  in  any 
such  violation." 

It  is  clear,  beyond  doubt,  that  there  was  not  the  iliglitest  au- 
thority in  Scanlan  and  the  deceased  to  arrest  the  prisoner,  unless 
it  can  be  found  in  the  supposed  writ  or  warrant,  which  the  court 
excluded.  And  it  cannot  be  denied  that  the  legality  of  the  arrest 
of  the  prisoner  was  a  material  question  in  determining  the  char- 
acter of  the  homicide;  for  it  is  a  well  established  rule,  that 
where  persons  have  authority  to  arrest,  and  are  resisted  and 
killed  in  the  proper  exercise  of  such  antliority,  the  homicide  is 
murder  in  all  who  take  part  in  such  resistance.  And,  on  the 
other  hand,  it  is  equally  well  settled,  that  where  the  carrest  is 
illegal,  the  oftcnse  is  reduced  to  manslaughter.  Foster,  270; 
Hale's  P.  C,  405. 

If,  therefore,  it  be  conceded  that  the  warrant  was  legal,  then, 
inasmuch  as  the  policeman  had  no  authority  to  arrest  the  pris- 
oner without  it,  the  production  of  the  warrant  in  evidence  was 
necessary  in  order  to  a  conviction  for  murder.  But  if  it  was,  to 
all  intents  and  purposes,  illegal  and  void,  then  the  supposed 
warrant  and  the  testimony  showing  its  nullity,  were  eoinj)etent 
and  proper  for  the  accused,  in  order  to  show  that  the  character 
of  the  homicide  was  manslaughter  and  not  murder. 

"We  have  seen  that,  by  the  express  provisions  of  the  charter  of 
Chicago,  no  process  of  the  kind  in  question  could  have  been 
lawfull}'  issued  by  the  magistrate  himself,  without  an  oath  or 
affirmation  made  for  tlie  warrant  as  in  otlier  cases;  and  vet,  we 
find  blanks,  signed  by  the  magistrate,  put  into  the  hands  of  a 
sergeant  of  police,  filled  out  by  him  and  used  as  legal  process 
with  which  to  arrest  the  citizens  of  the  state,  Avith  fnil  knowl- 
edge, as  we  must  presume,  on  the  part  of  the  magistrate  and 
sergeant,  that  they  were  so  put  into  use,  without  the  reqnired 
oath,  and  in  violation  of  law.     Such  conduct  is  reprehensible  in 


RAFFERTY  v.  PEOPLE. 


the  higliest  degree,  and  it  is  a  matter  of  no  astonishment  that 
tuch  tragical  results  followed.  But  when  so  filled  out,  tho 
pnpor  was  an  absolute  nullity.  It  did  not  issue  in  the  ordinary 
course  of  justice,  from  a  court  or  magistrate.  It  did  not  issue 
from  the  magistrate  at  all;  because,  when  it  went  from  his  con- 
trol, it  contained  no  authority,  express  or  implied,  to  arrest  and 
imprison  Ilatlerty  or  anybody  else. 

The  law  on  this  subject  is  clear  and  explicit.  "  But  if  the 
process  is  defective  in  the  frame  of  it,  as,  if  there  be  a  mistake 
in  the  name  of  the  person  on  whom  it  is  to  be  executed,  or  {ft/ia 
raune  of  such  2^<-'i'^07i,  or  of  the  officer,  le  inserted  viltUout  au- 
thonti/,  or  after  the  issuing  of  the  process,  or  if  the  officer  ex- 
ceeded his  authority,  tho  killing  of  the  officer  in  such  case  by  the 
party  would  be  jnanslaughter  oidy."    2  Arch.  Cr.  Pr.  and  PL,  242. 

"It  is  a  general  rule  that  when  persons  have  authority  to  ar- 
rest or  imprison,  and,  using  the  proper  means  for  that  purpose, 
:ire  resisted  in  so  doing  and  killed,  it  will  be  murder  in  all  who 
take  part  in  such  resistance.''  Foster,  270.  But  three  things 
are  to  be  attended  to  in  matters  of  this  kind;  the  legality  of  the 
deceased's  authority,  the  legality  of  the  manner  in  which  he  ex- 
ecuted it,  and  the  defendant's  knowledge  of  that  authority;  for, 
if  an  officer  be  killed  in  attempting  to  execute  a  writ  or  warrant 
invalid  on  the  face  of  it,  or  if  issued  toith  a  blank  in  it,  and  t/ie 
Ihnk  afterwards  filled  vp^  or  if  issued  with  an  insufficient  des- 
cription of  the  defendant,  or  against  the  wrong  person,  or  out  of 
tlie district  in  which  alone  it  could  be  lawfully  executed;  or  if  a 
private  person  interfere  and  act  in  a  case  where  he  has  no  author- 
ity by  law  to  do  so,  or  if  tho  defendant  have  no  knowledge  of 
the  otHcer's  business,  or  of  the  intention  with  which  a  private 
person  interferes,  and  the  officer  or  private  person  be  resisted 
ur  killed,  the  killing  will  be  manslaughter  only."  1  JIale's  P. 
C,  iC5.  See  also  Ilouslnv.  Barrow,  (i  Durnf.  and  East,  122; 
Rav.  Hood,  1  Moo.  C.  C;  1  East  P.  C,  110,  111. 

Koscoe,  in  his  work  oii  Criminal  Evidence,  09S,  says:  '"If  the 
process  be  defective  in  the  frame  of  it,  as,  if  there  be  a  mistake 
iu  the  name  or  addition  of  the  part}',  or  if  the  name  of  the  par- 
tij^  or  of  the  officer,  he  inserted  vntliout  authority,  and  aftt-r  the 
muliig  of  the  process,  and  the  officer,  in  attempting  to  execute 
it,  be  killed,  this  is  only  manslaughter  in  the  person  whose  lib- 
erty is  invaded." 


:  ( j  .  r, 


MM 


292 


AMERICAN  CRIMINAL  REPORTS. 


"'PfeUl 


'  ^ 


:;;i  ■■ 


H 


m. 


Such,  undoubtedly,  is  the  law,  and  the  evidence  excluded 
would  bring  the  prisoner's  case  fully  within  it.  Ills  name  Mas 
inserted  in  the  warrant  by  the  sergeant  of  police,  after  it  liad 
been  delivered  to  liim  by  the  magistrate,  and  consequently  witli- 
out  authority.  These  facts,  if  found  by  the  jury,  should  deter- 
mine the  character  of  the  homicide  to  be  numslaughter,  unless 
the  proof  showed  express  malice  towards  the  deceased.  3  Greenl. 
Ev.,p.  lOG,  sec.  123;  Jioberts  v.  The  State,  U  Mo.,  138.  Xo 
authority  has  been  cited,  and  we  hazard  nothing  in  saying  that 
none  can  be  found  which  would  justify  the  exclusion  of  this  evi- 
dence under  the  circumstances  of  this  case.  The  accused  had 
the  legal  right  to  have  it  go  to  the  jury,  because  it  was  material 
in  determining  the  character  of  the  homicide.  This  was  a  ques- 
tion exclusively  for  the  jury,  and  as  to  which  we  do  not  wish  to 
be  understood  as  expressing  any  opinion.  For  this  error  the 
judgment  will  be  reversed  and  the  cause  remanded. 

Judgment  reversed. 

Scott,  J.  I  cannot  yield  my  assent  to  all  the  reasoning  of  the 
majority  of  the  court. 

It  seems  to  me  the  rule  announced  may  be  liable  to  an  improp- 
er construction.  An  officer  is  not  boiuid,  at  his  peril,  to  judge 
whether  the  writ  he  is  about  to  serve  is,  in  fact,  legal,  or  whetli- 
er  the  magistrate,  wlio  issued  it,  was  guilty  of  misconduct  in 
not  complying  with  all  the  provisions  of  the  law.  It  would  he 
requiring  too  much  of  him  to  so  hold.  If  the  opinion  of  tlie 
court  can  be  construed  into  holding  a  contrary  doctrine,  I  do  nut 
concur  in  it.  The  general  rule  is,  the  officer  may  rightfully  ex- 
ecute, or  assist  in  the  execution  of  any  process,  regular  on  it* 
face,  without  putting  his  life  in  jeopardy  at  the  hands  of  offen- 
ders against  the  law.    Any  other  rule  would  be  unreasonable. 

There  can  be  no  question,  the  law  is,  if  a  party  in  resisting  an 
unlawful  arrest  commits  a  homicide,  the  crime  will  be  man- 
slaughter and  not  murder.  It  is  always,  however,  a  question  of 
fact,  to  be  found  from  the  evidence. 

In  this  view  of  the  law,  it  would  have  been  proper,  no  doubt, 
for  the  court  to  have  permitted  the  jury  to  consider  the  evidence 
tendered,  however  slight  it  might  be,  on  the  question  whether 
the  homicide  was  in  fact  committed  in  resisting  an  unlawful  ar- 
rest. 


COFFMAN  V.  COMMONWEALTH. 

Tlicre  is  no  pretense  tlie  deceased  was,  himself,  about  to  serve 
any  process,  and  it  may  be  the  jury  will  find  that  he  was  not 
even  assistiiJi;  Scanlan  to  arrest  the  accused  when  the  fatal  wound 
was  inflicted.    If  so,  the  evidence  will  be  immaterial. 


CoFFMAN  vn.  Commonwealth. 
(10  IJiwh,  Ky.,  4U5.) 

Homicide;  Confessions  —  Eiroiieous  chnryes  —  Mmislaughter — Self  •defense  — 
Death  from  suryical  operation. 

^Vhere  the  prnsecution  have  proved  declarations  of  the  respondent  relative  to 
the  homicide  by  a  witness  who  states  that  he  did  not  lieai"  all  that  respond- 
ent said  at  the  time,  the  resjwndent  has  a  right  to  prove  by  other  witnesses 
who  were  present  all  that  he  said  at  the  time  tending  to  exonenite  himself. 

A  charge  which  enumenites  the  fiicts  which  the  evidence  tends  to  prove  is  erro- 
neoiis.  Tlie  charge  should  point  out  the  facts  necessary  to  be  found,  and 
then  leave  to  the  counsel  to  argue  and  the  jury  to  determine  whether  or  not 
tlie  evidence  proves  these  facts. 

It  is  not  necessary  that  resjwndent  should  be  without  fault  in  order  to  reduce 
the  killing  of  deceiu^ed  by  a  blow  of  the  fist  in  a  sudden  quarrel  to  man- 

^    slaughter. 

In  order  to  excuse  a  homicide  on  the  ground  of  self-defense,  it  is  not  necessary 
that  there  should  be  immediately  impeniling  danger.  If  the  respondent  be- 
lieved, and  had  reswonable  ground  to  believe,  that  there  was  immediate  im- 
pending danger,  and  he  had  no  other  apparent  and  safe  means  of  escape, 
he  had  a  right  to  strike,  although  in  fact  there  was  no  danger. 

In  cases  of  homicide,  if  an  operation  is  perfonued  on  the  deceased,  such  as  an 
ordinarily  prudent  and  skdful  surgeon  to  be  procured  in  the  neighborhood 
would  deem  necessaiy,  and  such  operation  is  jwrformed  with  ordinary  skill, 
the  resjiondent  is  responsible  for  the  death,  although  the  operation  and.  not 
the  wound  made  by  him  caused  the  death. 

In  cases  of  homicide,  if  an  operation  is  perfonned  on  the  deceased,  such  as  would 
not  Iw  deemed  necessary  by  such  orilinarily  prudent  and  skilful  surgeon  as 
can  be  procurcd  in  the  neighborhood,  or  if  it  would  have  been  deemed  neces- 
sary but  wa.s  not  performed  with  onlinary  skill,  and  death  results  from  the 
operation  and  not  from  the  injuries  uiflicted  by  the  respondent,  the  respond- 
ent ought  to  be  acquitted,  even  though  the  injuries  inflicted  by  liim  might 
eventually  have  proved  fatid. 

CoFEK,  J.  Having  been  found  guilty  of  manslaughter,  and 
sentenced  to  confinement  in  the  penitentiary  for  eight  years,  for 
killing  John  Harrison,  the  appellant  seeks  a  reversal  of  that 
jiiilgmeut  on  two  grounds:  first,  that  the  court  erred  in  exclud- 
ingrimportant  legal  evidence  offered  by  him ;  and  second,  that 
the  court  erred  to  his  prejudice  in  instructing  the  jury. 


' ,  v'^ 


"1 


\i  ! 


P'  '. 


U 


% 


204 


AMERICAN  CRIMINAL  REPORTS. 


1.  A  witness  for  the  commonwealth  ]irovccl  tleclarations  maile 
by  nppdhmt  relative  to  the  homicide,  but  stated  that  he  did  nut 
hear  ail  that  the  appellant  said  at  the  time;  and  ai>pol]iviit  oileieil 
to  prove  by  other  witnesses  who  were  present  at  tlio  time  ami 
heard  the  words  proved  by  the  commonwealth's  Avitiieijs,  other 
Btatements  made  in  the  same  conversation,  tendin*,'  to  iiialve  mi; 
tlie  defense.  This  was  objected  to  and  excluded;  bntuliilewe 
regard  the  evidence  as  competent,  if  the  declarations  testitiedto 
by  the  witness  for  the  ap])ellee  were  introduced  by  t!ie  nonnnoii. 
wealth,  yet  as  it  does  not  appear  who  broui^ht  out  tlic  evidence 
of  the  declarations,  we  cannot  decide  that  the  court  erred  in  ex- 
cluding the  evidence  offered  by  appellant. 

2.  The  instructions  given  are  nearly  all  objectionable  becaufc 
of  an  attempt  made  to  enumerate  the  collateral  facts  wliicli  the 
evidence  tended  to  prove,  instead  of  being  hypothecated  u])on  tliu 
facts  necessary  to  constitute  guilt  or  to  nudce  out  a  defense.  The 
objection  to  an  attempt  to  enumerate  the  facts  whicdi  tlic  evi- 
dence tends  to  prove,  instead  of  basing  the  instructions  on  tlie 
facts  necessary  to  be  found  by  the  jury,  is  that  it  uiuiccessaiily 
lengthens  the  instructions,  and  is  on  that  account  ealculiited  tu 
confuse  and  mislead  the  jury;  and  it  is  liable  to  the  further  oh- 
jection  that  by  giving  prominence  to  the  facts  enumerated,  other 
facts  not  recited  seem  to  be  subordinated,  and  may  on  tlmtat- 
count  be  overlooked  by  the  jury;  or  they  may  conclude  that  a« 
the  court  has  referred  to  a  part  and  omitted  to  mention  other 
facts  which  the  evidence  tends  to  prove,  such  facts  M'cre  deemed 
by  the  court  of  no  importance.  Instructions  ought,  therefore,!'^ 
a  general  rule,  to  be  based  only  upon  such  facts  as  must  be  fomul 
by  the  jur}'  in  order  to  establish  guilt  or  to  make  out  a  defense, 
thus  leaving  to  counsel  to  argue  the  evidence  tending  to  estah- 
lish  the  essential  facts,  and  to  the  jury  to  decide  how  fur  the 
evidence  establishes  them. 

The  jury  were  told  in  substance,  in  the  second  instruction,  tliat 
if  the  appellant  ami  the  deceased  had  a  sudden  quarrel,  ami 
without  Jit  itlt  on  his  part,  appellant  in  sudden  heat  and  passion, 
and  not  to  defend  himself  from  immediate,  'imj^cndliuj  (ucl 
threatened  danger,  struck  the  deceased  and  knocked  him  down, 
and  he  was  injured  by  the  fall  and  died  from  the  injury,  they 
should  find  the  appellant  guilty  of  manslaughter. 

This  instruction  does  not  correctly  lay  down  the  law  of  self- 


COFFMAN  V.  COMMONWEALTH. 


295 


defense,  and  is  also  objectionable  on  the  groun  1  tlmt  it  required 
that  the  tti)i)cllant  sliouUl  have  been  without  ixult  before  the 
heat  of  passion  could  reduce  a  killing  done  by  a  blow  of  the  fist 
in  a  sudden  quarrel  from  murder  to  maiialuughter.  It  is  not 
necessary,  in  order  to  excuse  a  homicide  on  the  ground  of  self- 
defense,  that  thore  should  be  actual,  immediate,  imj}endin(/  dun- 
(fcr.  It'  the  aj)i)ellant  believed,  and  had  reasonable  ground  to 
believe,  there  was  immediate  impending,  danger,  and  he  had  no 
other  ft])pareiit  and  safe  means  of  escape,  he  had  a  right  to  strike, 
although  the  supposed  danger  may  not  in  fact  have  existed. 

hi  the  third  instruction,  the  jury  were  told  that  if  an  alterca- 
tion took  place  between  the  parties  in  a  grocery,  where  they 
seem  to  have  met,  and  the  deceased  invited  the  appellant  to  go 
with  liini  into  the  street  and  settle  the  matter,  and  the  appellant 
voluntarily  went  with  him  to  settle  the  nuitter,  and  after  getting 
into  the  street,  angry  words  were  used  by  both,  and  both  were 
ready  and  willing  to  light,  and  they  did  fight,  and  appellant 
wounded  the  deceased,  and  he  died  from  the  eti'ectof  the  wounds, 
appellant  was  guilty  of  numslaughter.  This  instruction  was 
erroneous.  The  appellimt  may  have  gone  out  for  an  amicable 
settlement  and  with  no  hostile  intention;  and  if  ho  did  so,  and 
a  quarrel  arose  and  a  fight  ensued,  his  riglit  of  self-defense  was 
nnallected  by  the  fact  that  he  had  gone  voluntarily. 

The  (pialiiication  of  the  fifth  instruction  was  also  erroneous, 
hi  it  the  jury  were  told,  after  a  recital  of  many  facts  which  the 
evidence  tended  to  prove,  that  if  in  view  of  such  facts  aj>pellant 
believed  and  had  reasonable  grounds  to  believe  deceased  would 
proceed  immediately  to  inflict  bodily  harm  upon  him  with  a 
knife,  and  that  he  would  do  so  unless  prevented  by  such  act  of 
self-defense  as  was  then  in  liis  power,  then  appellant's  acts  were 
excusable  on  the  ground  of  self-defense  and  apparent  necessity. 
Thus  far,  aside  from  the  improj)er  recital  of  collateral  facts,  the 
instruction  was  correct,  but  it  was  qualified  as  follows:  '•  Unless 
the  jury  find  that  'wheii  the  parties  ivent  out  to  settle  the  matters 
between  thent,  not  in  an  amicable  way,  hut  hy  force  and  violence, 
or  in  any  way  that  viiyht  arise  hetween  them,  then  they  cannot 
acquit  on  the  ground  of  self-defense  and  apparent  necessity,  and 
will  find  as  stated  in  the  third  instruction  " —  i.  e.,  for  manslaught- 
er. The  qualification  was  clearly  erroneous,  because  it  assumed 
that  the  parties  went  out  to  settle  matters  between  them,  not  in 


■■'.  OH    '      ;l  ItlffHI 

.vr>'       Iftfll 

\ 

.1  '^|''n[j{ 

1 

!  '    ■■  11 

i    ! 

i. 


200 


AMEUIt'AN  CUIMINAL  RErORTS. 


ail  ainieuljle  way,  hut  hij force  and  violence,  of  in  uny  vxtytkit 
'iniyht  ufine  hetween  them. 

The  evidonco  tended  to  ])rovo  that  the  Hpi)enant  knocked  the 
deceased  down  with  hiu  fist,  and  tliat  lie  fell  with  his  head  aj,'iiiiist 
n  post  from  which  a  nail  protruded  one-half  or  three-quartern  of 
nn  inch,  and  that  his  head  struck  the  nail  and  the  scalp  was  cut; 
that  the  aitpellant  stamped  upon  the  body  of  the  deceasuU  with 
his  foot,  and  that  the  latter  was  insensible  from  that  time  until 
his  death,  the  symptoms  iiidicating  that  there  was  couijjrossiou 
of  the  brain. 

A  medical  witness  testified  that  ho  cut  into  the  sk) ill  at  the 
•wound  made  by  the  nail,  but  discovered  no  evidence  of  injury  tu 
the  bone;  but  he,  and  other  i)hysic)ans,  believing?  there  was  com- 
pression or  extravasation  of  blood  on  the  brain,  and  that  the  pa- 
tient would  die  unless  he  could  be  relieved  by  trei)hinin;j:,  they 
as  a  last  resort  sawed  out  a  j)iece  of  the  skull-bone  about  an  inch 
in  diameter  and  removed  it,  and  found  clotted  blood  resting  on 
the  brain;  that  they  did  not  remove  the  blood,  but  ])laced  the 
piece  of  bone  in  the  aperture  and  left  it  there.  This  wa^  a  thy 
or  two  before  the  patient  died. 

In  view  of  this  evidence  the  court  gave  the  followini,'  instruc- 
tions, viz.:  "The  court  instructs  the  jury  that  thou<j;li  they  may 
believe  the  death  of  Harrison  was  caused  by  the  surgical  opera- 
tion, yet  if  the  operation  was  perforiaedhy  2>hysiciansasa  I'mn- 
edy  for  the  loounds  inflicted  by  the  defendant,  they  cannot  ac- 
quit  him  on  that  (jroundy 

AVe  cannot  approve  this  as  a  princiide  of  the  law  of  the  hind. 
The  mere  fact  that  the  operation  was  performed  by  phyj^ieians 
as  a  remedy  for  the  wounds  inflicted  by  the  appellant,  without 
any  reference  to  the  question  whether  such  an  operation  was 
reasonably  deemed  to  be  necessary,  or  was  performed  by  men  of 
ordinary  skill  as  surgeons,  or  in  an  ordinarily  skilful  manner, 
cannot  render  the  appellant  legally  responsible  for  the  death  of 
Harrison,  if  in  fact  the  operation  and  not  the  injuries  inllicted 
by  him  caused  his  death. 

The  rule  deducible  from  the  authorities  seems  to  be  that  where 
the  wound  is  apparently  mortal,  and  a  surgical  operation  is  per- 
formed in  a  proper  manner  under  circumstances  which  render 
it  necessary  in  the  opiniop  of  competent  surgeons,  upon  one  who 
lias  been  wounded  by  another,  and   "uch  operation  is  itself  tha 


ORTWEIN  r.  COMMONWEALTH. 


207 


iininedittte  cause  of  the  death,  the  person  who  inflicted  the  wound 
will  bo  resjxMiHiblo.  Coninioawealth  v.  Me  Pike,  3  Cush.,  181; 
Parnons  v.  The  State,  21  Ala.,  3(10.  Ihit  if  the  death  resulted 
from  grossly  erroneous  surgical  or  medical  treatment,  the  ori^i- 
imUutlior  will  not  bo  responsible.     21  Ala.,  300. 

It  should,  therefore,  have  been  left  to  the  jury  in  this  case  to 
fav  whether  the  oj)eration  performed  on  the  deceased  was  such  as 
mcliiiarily  prudent  and  skilful  surjjeons,  such  as  were  to  be  pro- 
ciiretl  in  the  neighborhood,  would  have  deemed  necessary  under 
the  circumstances  in  view  of  the  condition  of  tlio  })atient,  and 
whether  it  was  performed  with  ordinary  skill;  and  they  shouUl 
liiivc  been  told  that  if  they  found  the  atHrmativo  of  these  propo- 
sitions, the  a]>])ellant  was  responsible,  although  the  operation  and 
not  the  wound  inflicted  by  him  caused  the  deatli;  but  tliat,  if 
they  fouiul  that  the  ojieration  would  not  have  been  deemed  neces- 
sary by  such  ordinarily  prudent  and  skilful  physicians  and  sur- 
ijeons,  or  if  it  would  have  been  deemed  necessary  and  was  not 
))erfurnie'l  with  ordinary  skill,  and  the  death  resulted  from  tho 
operation  and  not  from  the  injuries  inflicted  by  appellant,  they 
ought  to  acquit  him,  even  though  they  might  believe  such  inju- 
ries v.ouhl  eventually  have  proved  fatal. 

For  the  errors  indicated,  the  judgment  is  reversed,  and  the  cause 
is  remanded  for  further  proceedings  not  inconsistent  with  this 
opinion.  Jmhjment  revei'sed. 


Oktwein  vs.  Commonwealth. 

(76  Pa.  St.,  414.) 

Homicide:    hisaiiit;/. 


A  charge  tlmt  "  if  tho  jiii-y  have  a  reasonable  doubt  of  the  sanity  of  the  pris- 
oner at  the  time  of  the  killing,  they  cannot  convict "  is  pmpcrly  refused. 

To  justify  an  acquittal,  in  cases  of  homicide,  on  the  ground  of  insanity,  the  evi- 
dence nuist  be  sufficient  to  satisfy  the  minds  of  the  juiy  that  the  respond- 
ent was  insane  at  the  time  of  the  killing.    A  doubt  is  not  sufficient. 

Agxew,  C.  J.  Tl'.e  chief  quesiion  in  this  case  arises  under  tho 
fifth  point  of  the  prisoner,  which  was  negatived  by  the  courts 
below.    It  is  this: 

5.  If  the  jury  have  a  reasonable  doubt  of  the  sanity  of  the 
prisoner  at  the  time  of  the  killing,  they  cannot  convict. 


298 


AMERICAN  CRIMINAL  REPORTS. 


-;;i.':;f 


R 


The  industry  of  the  able  counsel  of  the  prisoner  lias  collected 
and  classified  many  cases  on  this  point.     Wliile  we  think  their 
■weight  accords  with  our  own  conclusions,  we  cannot  help  per. 
ceiving,  in  their  number  and  variety,  that  the  decision  of  tlio 
question  should  rest  rather  oii  a  sound  basis  of  principle  than  on 
the  conclusions  of  other  courts.     In  order  to  apprehund  the  true 
force  of  the  principles  to  be  applied,  we  must  keep  in  tlic  fore- 
ground the  facts  of  the  case  before  any  question  of  insanity  can 
arise.     Insanity  is  a  defense.     It  presupposes  the  ])roof  of  tlie 
facts  which  constitute  a  legal  crime,  and  is  set  up  in  avoidunee 
of  punishment.     Keeping  in  mi-ul,  then,  that  an  act  of  wilful 
and  malicious  killing  has  been  proved  and  recpiires  a  venlict  of 
murder,  the  prisoner,  as  a  defense,  avers  that  he  was  of  unsound 
mind  at  the  time  of  the  killing,  and  inca))able  of  controlling  his 
will;  and,  therefore,  that  he  is  not  legally  responsihlo  for  his 
act.     This  is  the  precise  view  that  the  statute  itself  takes  of  the 
defense,  in  declaring  the  duty  of  the  jury  in  respect  to  it.    The 
66th  section  of  the  Criminal  Code  of  31st  March,  18G0,  tiikeu 
from  the  act  of  1836,  provides:  "  In  every  case  in  which  it  shall 
be  given  in  evidence,  upon  the  trial  of  any  person  charged  with 
any  crime    or  misdemeanor,  that   such  person   was   insane  at 
the   time   of   the  commission    of    such   oilense,   and   ho  shall 
be  acquitted,  tlie  jury  shall  be  required  to  find  specially  whether 
such  person  was  insane  at  the  time  of  the  commission  of  such 
ofiense   and  declare  whcdier  he  was  acipiitted  by  them  on  the 
ground  of  such  insanity."     Thus  the  verdict  must  find  the  fait 
of  insanity,   and   that  the  accjuittal    is   because   the  fact  is  so 
found.     The  law  then  ])rovides  for  the  proper  custody  of  the 
insane  prisoner.     This  being  the  provision  of  the  statute,  it  is 
evident  that  a  jury,  l)cfore  finding  the  fact  of  insanity  specially, 
must  be  satisfied  of  it  by^  tlie  evidence.     A  reasonable  douht 
of  the  fact  of  insanity  cannot,  therefore,  be  a  true  basis  of  the 
finding  of  it  as  a  fact,  and  as  ground  of  ac<piittal  and  of  leiral 
custody.   To  doubt  one's  sanity  is  not  necessarily  to  be  convinced 
of  his  insanity. 

It  has  been  said  in  a  nearly^  analogous  case,  "  As  to  whether  a 
reasonable  doubt  shall  establish  the  existence  of  a  plea  of  self- 
defense,  I  take  tlie  law  to  be  this:  If  there  be  a  reasonaltle  douht 
that  aiiy  offense  has  been  committed  by  the  prisoner,  it  operates 
to  acquit.     But  if  the  evidence  clearly  establishes  the  killing  by 


ORTWEIN  V.  COMMONWEALTH. 


299 


the  prisoner,  jnirpo&ely,  with  a  deadly  weapon,  an  illegal  homi- 
cide of  some  kind  is  established,  and  the  hurden  then  falls  upon 
the  prisoner,  and  not  on  the  commonwealth,  to  show  that  it  was 
excusahle  as  an  act  of  self-defense.  If,  then,  his  extenuation  is 
in  doubt,  he  cannot  he  acquitted  of  all  crime,  hut  must  he  con- 
victed of  homicide  in  some  one  of  its  grades  —  manslaughter  at 
least.  Commomvealth  v.  Dnim,  P.  F.  Smith,  22.  Such,  also, 
vas  the  opinion  of  the  late  Chief  Justice  Lewis,  a  most  excellent 
criminal  law  judge,  when  ])resident  of  the  Lancaster  county  oyer 
and  terminer,  in  the  trial  of  John  Ilaggerty,  in  the  year  1847. 
Lewis,  U.  S.  Crim.  Law,  402.  He  said,  p.  406:  "The  jury  will 
decide  upon  the  degree  of  intoxication,  if  any  existed,  and  upon 
the  existence  of  insanity.  The  hurden  of  proof  of  this  defense 
rests  upon  the  prisoner;  the  fact  of  killing  under  circumstances 
of  deliberation  detailed  in  this  case  heing  estahlished,  the  in- 
sanity which  furnishes  a  defense  must  he  shown  to  have  existed 
at  the  time  the  act  was  committed.  The  evidence  must  he  such 
as  satisfies  the  minds  of  the  jury."  Thus,  according  to  both 
statutory  and  judicial  interpretation,  the  evidence  to  establish  in- 
sanity as  a  defense  must  be  satisfactory,  and  notiuerely  doubtful. 
If  we  now  analyze  the  subject,  we  ^hall  find  that  this  is  the 
only  safe  conclusion  for  society,  while  it  is  just  to  the  prisoner. 
Soundness  of  mind  is  the  natural  and  normal  condition  of  man, 
and  is  necessarily  presumed,  not  only  because  the  fact  is  gener- 
ally so,  but  because  a  contrary  presumption  would  be  fatal  to 
the  interests  of  society.  !No  one  can  justly  claim  irresponsibil- 
ity for  his  act  contrary  to  the  known  nature  of  the  race  of  which 
lie  is  one.  He  must  be  treated  and  be  atljudged  to  be  a  reasona- 
ble being  until  a  fact  so  abnormal  as  a  want  of  reason  positively 
appears.  It  is,  therefore,  not  unjust  to  him  that  he  should  be  so 
conclusively  presumed  to  be,  until  the  contrary  is  made  to  appear 
on  his  behalf.  To  be  so  made  to  appear  to  the  tribunal  deter- 
mining the  fact,  the  evidence  of  it  must  be  satisfactory  and  not 
merely  doubtful,  as  nothing  less  than  satisfaction  can  determine 
a  reasonable  mind  to  believe  a  fact  contrary  to  the  course  of  na- 
ture. It  cannot,  therefore,  be  said  to  be  cruel  to  the  prisoner, 
to  hold  him  to  the  same  responsibility  for  his  act,  as  that  to 
which  all  reasonable  beings  of  his  race  are  held,  until  the  fact  is 
positively  proved  that  he  is  not  reasonable.  This  statement  do- 
rives  additional  force  from  the  opinion  of  Chief  Justice  Gibson, 


1 

! 


300 


AMERICAN  CRIMINAL  REPORTS. 


in  the  case  of  T/ie  Commonwealth  v.  Jfashler,  tried  before  hiiu 
and  Justices  Bell  and  Coulter,  in  Philadelphia,  and  quoted  from 
in  Lewis's  U.  S.  C.  L.,  403-4.  "  Insanity,""  he  says,  "  is  mental 
or  moral,  the  latter  being  sometimes  called  homicidal  mania,  and 
properly  so.  A  man  may  be  mad  on  all  subjects,  and  then, 
though  he  may  have  a  glimmering  of  reason,  he  is  not  a  respon- 
sible agent.  This  is  general  insanity;  but  if  it  be  not  so  <,'reat 
in  its  extent  or  degree  as  to  blind  him  to  the  nature  and  conse- 
quences of  his  moral  duty,  it  is  no  defense  to  an  accusation  of 
crime.  It  must  be  so  great  as  entirely  to  destroy  his  perception 
of  right  and  wrong,  and  it  is  not  until  that  perception  is  tluis 
destroyed  that  he  ceases  to  be  responsible.  It  must  amount  to 
delusion  or  hallucination  controlling  his  will,  making  the  com- 
mission of  the  act,  in  his  apprehension,  a  duty  of  overrnlin" 
necessity."  Again:  "Partial  insanity  is  confined  to  a  particu- 
lar subject,  being  sane  on  every  other.  In  that  species  of  mad- 
ness it  is  plain  that  he  is  a  responsible  agent  if  he  were  not  in- 
etigated  by  his  madness  to  perpetrate  the  act.  He  continues  to 
be  a  legitimate  subject  of  punishment,  although  he  may  be 
laboring  under  a  moral  obliquity  of  perception,  as  much  so  as  if 
he  were  merely  laboring  under  au  obliquity  of  vision."  And 
again:  "The  law  is,  that  whether  the  insanity  be  genonil  or 
partial,  the  degree  of  it  must  be  so  great  as  to  have  contrulled 
the  will  of  its  subject  and  to  have  taken  from  him  the  freedom 
of  moral  action."  Thus  all  the  utterances  of  the  chief  justice 
on  this  subject  are  positive  and  emphatic,  and  allow  no  room  for 
doubts,  or  merely  negative  expressions. 

And  if  this  reasoning  were  even  less  than  conclusive,  the 
safety  of  society  would  turn  the  scale.  Merely  doubtful  evi- 
dence of  insanity  would  fill  the  land  with  acquitted  criminals. 
The  moment  a  great  crime  would  be  committed,  in  the  same  in- 
stant, indeed  often  before,  would  preparation  begin  to  lay  ground 
to  doubt  the  sanity  of  the  perpetrator.  The  more  enormous 
and  horrible  the  crime,  the  less  credible,  by  reason  of  its  enor- 
mity, would  be  the  required  proof  of  insanity  to  acquit  of  it. 
Even  now  the  humanity  of  the  criminal  law  opens  many  doors 
of  escape  to  the  criminal.  Then  a  wider  door  would  be  opened 
by  the  doubtful  proof  of  insanity  made  still  more  open  by  the 
timidit_^  of  jurors,  their  loose  opinions  on  the  subject  of  punish- 
ment, and  their  common  error  that  the  punishment  is  the  conse- 


PEOPLE  V.  OLMSTEAD. 


301 


queuce  of  their  finding  of  the  truth  of  the  facts,  instead  of  the 
consequence  of  the  commission  of  the  crime  itself.  The  danger 
to  society  from  acquittals,  on  the  ground  of  a  doubtful  insanity, 
demands  a  strict  rule.  It  requires  that  the  minds  of  the  triers 
should  be  satisfied  of  the  fact  of  insanity.  Finally,  we  think 
this  point  has  been  actually  ruled  by  this  court  in  the  case  of 
Lmch  V.  Commonwealth,  decided  at  Pittsburg,  in  1S73.  The 
prisoner's  second  point  was  in  these  words:  "That  if  the  jury 
liad  a  reasonable  doubt  as  to  the  condition  of  the  defendant's 
mind  at  the  time  the  act  was  done,  he  is  entitled  to  the  benefit 
of  snch  doubt,  and  they  cannot  convict."  The  court  below  said 
in  answer:  "The  law  of  the  state  is  that  where  the  killing  is 
admitted,  and  insanity  or  want  of  legal  responsibility  is  alleged 
as  an  excuse,  it  is  the  duty  ol  the  defendant  to  satisfy  the  jury 
that  insanity  actually  existed  at  the  time  of  the  act,  and  a  doubt 
as  to  such  insanity  will  not  justify  a  jury  in  acquitting  upon  that 
irround."    This  ruling  was  sustained. 

[Opinion  by  Read,  C.  J.    See  Pittsburg  Legal  Journal,  14,  53.    The  rest  of  the 
opinion  is  not  considered  iniiwrtant.    Uep.] 


i'i 


People  vs.  Olmstead. 
(30  Mich.,  431.) 


Homicide:  }f<iiisht lighter  in  attempt iiif/  an  aho>iioii — Ei-ldeiwe  —  Expert  — 
Di/iiif/  (hchirations  —  Sustaining  impeached  witness —  Pleading  —  Infor- 
mation, 


On  tlie  trial  of  a  prosecution  for  manslaughter  in  attempting  to  procure  an 
abortion,  it  is  competent  to  prove  any  facts  tending  to  show  of  what  the 
deceased  died. 

It  is  not  proper  to  admit  the  opinion  of  a  witness  as  to  what  a  person  died  of, 
without  showing  in  the  first  place  that  the  witness  had  made  a  su  fficient 
examination  of  the  deceased,  and  luid  such  knowledge  or  experience  as  would 
qualify  lier  to  give  an  opinion. 

On  the  trial  of  respondent  for  manslaughter  in  attempting  to  procure  an  alx)r- 
tion,  it  was  held  that  an  exclamation  by  the  deceased  the  day  before  she  died, 
».  e.  "  Oh,  Aleck,  what  have  we  done?  1  shall  die,"  was  not  admissible  aa 
a  dying  declaration. 

It  is  not  competent  to  sustain  tlie  cretlit  of  a  witness,  who  has  been  impeached 
by  proof  that  he  had  made  ditterent  statements,  of  the  circumstances  testified 
to  l)y  him  on  the  trial,  by  evidence  of  his  general  reputation  for  trutli  and 
veracity. 


AMERICAN  CRIMINAL  REPORTS. 

Tlie  respondent  cannot  be  convicted  of  statutory  manslaughter,  in  attempting 
to  procure  an  abortion,  on  an  information,  charging  him  simply  \\it\\  lujiu- 
slaughter,  which  does  not  recite  the  facts  which  constitute  the  crime  unclcr 
the  statute. 

ExcEi'Tioxs  from  Branch  Circuit. 

fi^itao  Marston,  Attorney  General,  for  the  people. 

H.  P.  Loverldije  and  L.  T.  N.  Wilcox,  for  respondent. 

Cami'bkll,  J.  The  respondent  was  informed  against  for  man- 
slaughter,  in  killing  one  Mary  Bowers,  wliom  it  is  averred  he  did 
"feloniously,  wilfully  and  wickedly  kill  and  slay,  contrary  totlie 
statute  in  such  case  made  and  provided,"  etc.  The  information 
does  not  name  the  ofi'ense,  nor  the  manner  or  means  of  its  com- 
mission. 

Upon  the  trial,  the  prosecution,  in  opening,  stated  that  tlic 
prisoner  was  charged  under  §  754:2  of  the  Compiled  Laws,  wliich 
is  as  follows: 

"  Every  person  who  shall  administer  to  any  woman  pregnant 
with  a  quick  child  any  medicine,  drug,  or  substance  whatever,  or 
shall  use  or  employ  any  instrument  or  other  means,  with  intent 
thereby  to  destroy  such  child,  unless  the  same  shall  have  been 
necessary  to  preserve  the  life  of  such  mother,  or  sliall  have  been 
advised  by  two  physicians  to  be  necessary  for  such  purpose,  sliall, 
in  case  the  death  of  such  child  or  of  such  mother  be  thereby 
jiroduced,  be  deemed  guilty  of  manslaughter." 

The  preceding  section  makes  the  malicious  killing  of  an  un- 
born quick  child  manslaughter,  if  done  by  an  injury  to  the 
mother  which  would  have  constituted  her  murder  if  she  had 
died. 

The  succeeding  section  makes  all  unnecessary  attempts  to  pro- 
duce the  miscarriage  of  a  pregnant  woman,  whatever  may  be  the 
result,  punishable  as  a  misdemeanor. 

The  distinction,  therefore,  is  clearly  tjiken,  as  dciicndingon 
the  intent  to  destroy  a  living  unborn  child  and  sui)plies  a  defect 
at  the  common  law,  whereby  such  attempts  were  not  felonious, 
and  in  some  cases,  at  least,  may  not  have  been  punishable  at  all. 

The  elements  of  the  crime,  Jis  applied  to  the  case  before  ns,are 
found  in  the  death  of  the  mother,  produced  by  acts  intended  to 
destroy  a  quick  child;  that  term  being  used  in  the  statute  forau 
unborn  child  liable  to  be  killed  by  violence.     The  ambiguity 


PEOPLE  V.  OLMSTEAD. 


303 


which,  according  to  Mr.  Bishop,  seems  to  exist  in  some  statutes, 
as  to  the  foetal  condition,  is  not  found  in  our  statutes,  which  cov- 
er tlie  whole  ground  by  different  j)rovisions.  Comp.  L,,  §§  7541, 
7542,  7543;  Uish.  Statutory  Crimes,  §§742-750,  and  cases  cited. 

Tiie  case  was  presented  to  the  jury  upon  circumstantial  evi- 
dence entirely,  the  cause  of  deatli  being  proved  by  medical  tes- 
timony from  a  jwst  mortem  examination,  and  the  connection  of 
respondent  with  it  being  also  inferential. 

Upon  the  trial,  one  Lucy  Stone  was  sworn  as  a  witness,  who 
testified  to  having  been  t.v.-..  for  by  respondent  on  the  day  before 
the  deceased  died,  to  wash  her  and  change  her  clothes.  She  tes- 
tified to  certain  appearances  upon  the  bed  and  clothing,  and  to  a 
peculiar  offensive  odor  which  she  said  she  had  never  noticed  be- 
fore at  any  time  or  place,  although  she  had  noticed  something 
like  it.  This  testimony  was  objected  to,  but  we  think  it  was 
allowable  as  going  to  show,  in  some  degree,  the  condition  of  the 
deceased,  and  as  a  circumstance  which  was  not  irrelevant,  and 
which  might  possibly  be  mjiterial  with  other  proofs. 

Eut  without  proof  of  any  minute  examination  of  the  person  of 
the  deceased,  or  any  facts  on  which  she  based  her  opinion,  or  of 
any  knowledge  or  experience  which  might  enable  her  to  form  an 
opinion,  this  same  witness  was  allowed  to  answer  the  following 
question:  "Will  you  state  what  in  your  opinion  was  the  matter 
with  Mrs.  I>owers  at  that  time?"  Her  reply  was:  "  My  opinion 
was  that  she  had  lost  a  child." 

It  isiinpossiole  to  find  any  reason  for  receiving  such  proof. 
It  Involved  an  opinion  which  no  medical  man  could  give  with- 
out a  very  full  examination.  It  also  undertook  to  show  more 
than  a  mere  miscarriage. 

Xo  witness,  medical  or  otherwise,  can  l>e  allowed  to  give  tes- 
timony from  his  observation,  concerning  the  nature  of  a  person's 
illness  or  its  causes,  without  proof  both  of  a  sufficient  examina- 
tion and  such  knowledge  or  experience  as  will  qualify  him  to 
offer  an  opinion.  This  woman  may  or  may  not  have  possessed 
such  knowledge  as  would  allow  her  to  give  an  opinion  upon  some 
of  the  medical  questions  involved  in  her  answer,  but  she  gave  no 
proof  of  her  knowledge,  and  gave  no  testimony  upon  which  it 
could  be  inferred  that  her  observation  was  such  as  would  have 
justified  any  one  in  expressing  an  opinion.  AVhether  it  is  with- 
in the  power  of  medical  science  to  determine  from  mere  obser- 


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304 


AMERICAN  CRIMINAL  REPORTS. 


ration  that  there  has  been  a  miscarriage  of  a  quick  child,  is  a 
question  we  need  not  consider.  It  is  certain  tliat  any  compet- 
ent physician  wonkl  be  very  guarded  in  offering  such  an  opinion. 
It  is  impossible  to  avoid  the  belief  that  the  witness  answered 
from  her  suspicions,  and  not  from  observation  alone,  and  the 
question  allowed  to  be  put  did  not  confine  her  to  any  such  source 
of  knowledge  or  inference.  There  is  no  occasion  to  review  au- 
thorities npon  so  plain  a  case. 

Objection  was  also  made  to  the  reception  of  testimony  from 
Mrs.  Belinda  Wheeler,  as  to  what  was  claimed  to  have  been  a 
dying  declaration.  This  witness  swore  she  was  alone  in  the 
room  with  deceased  the  day  before  her  death.  Her  account  is 
as  follows:  "She  was  lying  with  her  eyes  shut.  She  did  not 
open  her  eyes,  and  I  put  my  hand  on  her  wrist  to  see  if  I  coukl 
feel  her  pulse,  and  then  she  spoke  and  says:  '  Oh,  Aleck,  what 
have  we  done?  I  shall  die.'  I  went  away  in  a  few  minutes  af 
ter  that."  And  being  further  examined,  she  testified:  "  She 
did  not  open  her  eyes  the  last  time  I  was  there"  (which  was  the 
time  in  question),  or  say  anything  else;  I  did  not  say  anything.'' 
This  is  the  whole  proof,  except  some  cross-examination  about 
witness'  statements  on  other  occasions,  bearing  upon  the  exist- 
ence of  delirium. 

Dying  declarations,  as  is  well  settled,  are  neither  more  nor 
less  than  statements  of  material  facts  concerning  the  cause  anil 
circumstances  of  homicide,  made  by  the  victim  under  the  sol- 
emn belief  of  impending  death,  the  eflfect  of  which  on  the  mind 
is  regarded  as  equivaleiit  to  the  sanction  of  an  oath.  They  are 
snbstitntes  for  sworn  testimony,  and  must  be  such  narrative 
statements  as  a  witness  might  properly  give  on  the  stand  if  liv- 
ing. See  Peojyle  v.  Knapp^  2(5  Mich.,  112,  and  cases  cited;  also 
Ilurd  V.  People,  2.5  id.,  -105. 

The  so-called  declaration  admitted  here  was  entirely  destitute 
of  any  feature  of  testimony  in  the  proper  sense  of  the  terra. 
There  is  nothing  to  indicate  that  it  referred  to  the  cause  of  death. 
It  was  not  made  for  the  purpose  of  explaining  any  act  connected 
with  the  death.  It  formed  no  part  of  any  conversation,  and  was 
called  out  by  no  qnestion  or  suggestion,  and  does  not  purport  to 
be  a  narrative  of  anything.  Neither  is  there  anything  to  indi- 
cate that  it  was  made  for  any  purpose,  or  in  view  of  any  expect- 
ation of  death,  or  that  the  deceased  knew  to  whom  she  was 


PEOPLE  V.  OLMSTEAD. 


305 


speaking,  or  that  she  meant  to  speak  to  any  body.  It  is  not  even 
evident  that  slie  was  awake  or  in  her  senses.  The  exchiniation, 
if  made  in  the  manner  described,  is  sucli  a  one  as  might  natn- 
rally  come  from  a  person  in  agony,  wliose  attention  was  com- 
pletely distracted  from  the  jjcrsons  and  tilings  ahont  her;  and 
might  easily  have  come  from  one  c^nite  nnconscioiis  of  such 
mutters. 

It  would  he  extremely  dangerous,  and  contrary  to  every  nde 
of  evidence,  to  allow  such  an  exclamation  to  he  received  as  a 
dying  declaration  of  facts,  and  to  allow  it  to  he  eked  out  by  sus- 
picions and  inferences,  as  was  done  licre,  so  as  to  allow  the  jury 
to  act  upon  it  as  if  she  liad  solemnly  charged  the  respondent 
;vith  beiiiij  the  author  of  her  death,  in  the  manner  charijed 
ii'^ainst  him. 

Two  witnesses,  Ilattic  Sweet  and  Belinda  "Wheeler,  had  been 
sworn  for  the  prosecution,  and  evidence  had  been  given  by  the 
defense  to  show  that  they  had  given  different  statements  out  of 
court  upon  material  facts,  and  that  one  of  them  ha<l  testified 
differently  on  a  former  trial  and  examination.  The  court, 
against  objection,  allowed  their  credit  to  be  supported  by  proof 
of  general  reputation  for  truth  and  veracity. 

This,  we  think,  was  error.  It  is  defended  on  the  strength  of 
certain  intimations  of  Mr.  Greenlcaf  (1  Grcenl.  Ev.,  §  -lOO)  and 
eases  to  which  he  refers.  The  origin  of  the  doctrine,  that  the 
irenei'al  good  character  of  a  witness  may  be  shown  in  answei"  to 
any  kind  of  impeachment  seems  to  be  referred  to  /?(u'  v.  Clarke, 
i  Stark.,  24-1,  and  to  a  reference  in  Starkie's  Evidence  to  that 
ease,  as  suj)purtiiig  it,  and  some  decisions  in  this  country  appear 
to  favor  it. 

But  that  case,  if  it  be  received  as  authority,  decides  nothing 
of  the  kind.  It  only  holds  that  where  a  witness  has  been  asked 
questions  on  cross-examination  directly  tending  to  discredit  his 
character,  —  as,  for  example,  whether  he  has  been  convicted  of 
crime,  or  done  acts  which  may  disgrace  him,  —  his  good  charac- 
ter may  be  shown  to  remove  suspicions  that  might  arise  from 
that  course  of  examination.  It  was  not  a  case  where  a  witness 
had  heen  impeached  by  proof  of  contradictory  statements,  and 
there  is  no  strong  analogy  between  those  two  examples. 

The  question  has  been  amply  discussed  in  Xew  York  and  Mas- 
sachusetts, and  settled  against  such  a  practice.    The  matter  was 
Vol.  I.  —  20 


300 


AMERICAN  CRIMINAL  HEPORTS. 


first  considered,  but  not  decided  distinctly,  in  People  v.  Hector, 
19  Wend.,  59G.  In  People  v.  Ilulse,  3  Hill,  309,  it  was  again 
disputed,  and  the  doctrine  settled  against  allowing  the  testimony. 
Bronson,  J,,  gives  some  forcible  reasons  for  that  conclusion 
Avhile  Cowen,  J.,  was  for  receiving  it,  as  he  had  intimated  in 
People  V.  Pector.  In  StarhR  v.  People,  5  Denio,  107,  the  court 
iinanimously  adhered  to  the  ruling  in  I*eople  v.  Iluhe  and 
adopted  the  opinion  of  Judge  Bronson.  In  7  N.  Y.,  37S  [Pen. 
2)le  V.  G((i/),  the  court  of  appeals  affirmed  and  approved  People 
V.  Iliihe,  and  overruled  the  contrary  opinions  of  Judge  Cowen. 

The  case  of  Russell  v.  Coffin,  8  Pick.,  143,  is  an  early  case  in 
]\[assachu setts,  where  the  question  was  carefully  considered,  and 
decided  against  receiving  the  sustaining  testimony.  Other  cases 
are  referred  to  by  Judge  Bkoxson  to  the  same  effect.  And  in 
Brown  v.  .Mooers,  6  Gray,  451,  ^Mr.  Greenleaf's  doctrine  is  em- 
phatically repudiated  as  unfounded. 

Looked  at  as  a  question  of  principle,  it  is  not  easy  to  see  the 
propriety  of  permitting  such  proofs.  It  is,  in  effect,  an  attempt 
to  impeach  one  witness  by  showing  the  good  character  of  an- 
other whom  he  has  contradicted.  J>ut,  until  impeached  in  some 
way,  every  witness  has  the  legal  presumj)tion  of  good  cliaracter, 
which  would  not  be  touched  by  another's  character,  and  the  rule 
is  well  settled  that  good  reputation  camiot  be  shown  affirmatively 
before  it  is  assailed  by  proof.  If  proof  can  be  received  which 
will  allow-  good  character  to  stand  as  a  counterpoise  to  positive 
fiK'ts  in  one  case,  it  would  be  very  unjust  to  shut  it  out  at  any 
time. 

The  impeaching  witness  should  be  allowed  to  confirm  his  oath 
by  it,  if  the  iinpeacked  witness  may  use  it  against  the  impeacher, 
and  the  process  woiild  never  come  to  an  end. 

It  is  not  collateral,  but  direct,  when  offered  upon  the  issue 
raised  by  an  impeachment  of  general  reputation.  There  the  wit- 
ness on  one  side  asserts,  and  the  opposing  witness  denies  the 
same  facts,  and  no  side  issues  are  raised.  But  whatever  may  be 
the  likelihood  that  a  man  of  good  character  will  tell  the  truth, 
it  will  not  turn  falsehood  into  truth  if  he  asserts  a  falsehood;  and 
the  attempt  to  sustain  contradicted  witnesses  by  evidence  of  char- 
acter can  only  lead  to  endless  inquiries,  which  are  not  lilcely  to 
aid  in  getting  at  the  facts  in  issue.  It  is  fiir  less  satisfactory 
than  the  view  and  comparison  of  witnesses  before  the  jury.    H 


;  <• 


W^WWnmT. 


.;'v;-'^!,,|>:  '■.i.ib.h. 


TEOPLE  r.  OLilSTEAD. 


307 


would  require  every  witness  (as  well  remarked  by  Pabkek,  C.  J.) 
to  bring  his  compurgators  to  support  him  when  he  is  contra- 
dicted, and  indeed  it  would  be  a  trial  of  the  witnesses,  and  not 
of  the  action.     8  Pick.,  154. 

We  think  the  rnle  which  excludes  pi'oof  of  character  in  such 
cases  is  sound  and  reasonable,  and  we  are  disposed  to  adhere  to  it. 

A  remaining  question  is  of  some  consequence.  Objection  was 
made  that  the  information  was  not  properly  framed  to  support 
the  conviction. 

Tlie  information  is  very  brief,  and  consists  of  the  single  state- 
ment that  respondent,  on  a  day  and  year,  and  at  a  place  named, 
"one  Mary  A.  Bowers  feloniously,  wilfully  and  wickedly  did 
kill  and  slay,  contrary  to  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state  of  Michigan." 

It  is  not  claimed  by  any  one  that  this  would  have  been  a  good 
indictment  at  common  law,  not  only  for  formal  defects,  but  also 
for  not  indicating  in  any  way  the  means  or  manner  of  causing 
death.  But  it  is  justified  under  our  statute,  which  dispenses 
with  allegations  of  these,  and  declares  it  sufTicient  "  to  charge 
that  the  defendant  did  kill  and  slay  the  deceased."    C.  L.,  §  7016. 

Respondent  claims  that  the  constitutional  right  "  to  be  in- 
formed of  the  nature  of  the  accusation,"  involves  some  informa- 
tion concerning  the  case  he  is  called  on  to  meet,  which  is  not 
given  by  such  a  general  charge  as  is  here  made.  And  courts 
are  certainly  bound  to  see  to  it  that  no  such  right  is  destroyed 
or  evaded,  \\Iiile  they  are  equally  bound  to  carry  out  all  legisla- 
tive provisions  tending  to  simplify  practice,  so  far  as  they  do 
not  destroy  rights. 

The  discussions  on  this  subject  sometimes  lose  sight  of  tho 
principle  that  the  rules  requiring  information  to  be  given  of  the 
nature  of  the  accusation  are  made  on  the  theory  that  an  innocent 
man  may  be  indicted,  as  well  as  a  guilty  one,  and  that  an  inno- 
cent iftan  will  not  be  able  to  prepare  for  trial  without  kn(»wing 
what  he  is  to  meet  on  trial.  And  the  law  not  only  j^resumes 
innocence,  but  it  would  bo  gross  injustice  unless  it  framed  rules 
to  protect  the  innocent. 

The  evils  to  be  removed  by  the  various  acts  concerning  indict- 
ments consisted  in  redundant  verbiage,  and  in  minute  charges 
which  were  not  required  to  be  proven  as  alleged.  It  was  mainly, 
no  doubt,  to  remove  the  necessity  of  averring  what  need  not  be 


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AMERICAN  CRIMINAL  REPORTS. 


proved  as  alleged,  and  therefore  gave  no  Infonnation  to  the  prij. 
oner,  that  tlie  forms  were  siniplilied.  And  these  difficulties  were 
chielly  confined  to  coninion  law  offenses.  Statutory  ofienses 
were  always  required  to  be  set  out  with  all  the  statutory  ele- 
ments. Iioater  v.  Peoj>Ie,  8  Mich.,  431 .  The  statute  denigiicil 
to  simplify  indictments  for  statutory  crimes,  which  is  in  force  in 
this  state,  and  is  a  part  of  the  same  act  before  quoted,  readies 
that  result  by  declaring  that  an  indictment  describing  au  otfeiifc 
in  the  words  of  the  statute  creating  it  shall  be  maintained  after 
verdict.  C.  L.  §  7028.  But  both  of  these  sections  must  be  reml 
in  the  light  of  the  rest  of  the  same  statute,  which  ])luiiily  con- 
fines the  omission  of  descriptive  avermeiits  to  cases  where  it  will 
do  no  prejudice.  And  so  it  was  held  in  Enilers  v.  People^  20 
Mich.,  2t)3,  that  nothing  could  be  omitted  by  virtue  of  this  stat- 
ute, which  was  essential  to  the  descri])tion  of  an  ofi'cnse. 

Manslaughter,  at  common  law,  very  generally  consisted  of 
acts  of  violence  of  such  a  nature  that  indictment  for  nnu'der  ami 
manslaughter  were  interchangeable,  by  the  omission  or  reten- 
tion of  the  allegation  of  nnilice,  and  of  the  technical  names  of 
the  offenses.  In  a  vast  majority  of  cases,  a  very  simjdo  allega- 
tion would  be  enough  for  the  protection  of  the  ]>risoner. 

But  where  the  offense  of  manslaughter  was  invuluntary  homi- 
cide, and  involved  no  assault,  but  arose  out  of  some  ne_£,digeneu 
or  fault  from  which  death  was  a  consequential  result,  and  some- 
times not  a  speedy  one,  the  ordinary  forms  were  deficient, 


aim 


the  indictment  had  to  be  framed  upon  the  i)eculiar  facts,  aii'l 
could  convey  no  adequate  information  without  this.  See  2  Ijii-li. 
Cr.  Broceed.,  g  538. 

The  offense  for  which  the  respondent  in  this  case  was  put  on 
trial  originated  in  the  statute  defining  it,  and  could  nut  have 
come  within  any  of  the  descriptions  of  manslaughter  at  conuiion 
law.  An  innocent  person,  charged  under  the  information,  couU 
form  no  idea  whatever,  from  it,  of  the  case  likely  to  be  set  ui* 
against  liim.  He  might,  periiaps,  l)o  fairly  assumed  l)oiuid  to 
prepare  himself  to  meet  a  charge  of  manslaughter  by  direct  vio- 
lence or  assault.  But  which  one  was  meant,  out  of  the  multi- 
tudinous forms  of  indirect  and  consequential  homicide  that 
might  occur  after  a  delay  of  any  time,  not  exceeding  a  year, 
from  an  original  wrong  or  neglect,  and  of  which  ho  mii^ht  or 
might  not  have  been  informed,  he  could  not  readily  conjecture 


LEIDER  r.  COMilON WEALTH. 


309 


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Xotliiii^'  couUl  infonn  him  of  tlii.s  statutuiy  charye,  except  alle- 
iratioin*  confoniiing  to  tlic  statute.  These,  we  think,  lie  was  en- 
titled  to  have  spread  out  upon  the  accusation.  Without  them, 
lie  was  liable  to  be  surprised  at  the  trial,  and  could  not  be  ex- 
jiected  to  jirc'itare  for  it. 

''iVe  are  not  ]>re])ared  to  hold  thirs  information  bad  upon  its 
f;iec,  fur  we  are  disposed  to  thiidc,  and  it  was  practically  admit- 
ted cm  the  arpiment,  that  it  iiiMV  apfdy  to  the  ordinary  homi- 
cides by  assault.  It  was  not,  therefore,  until  the  evidence  came 
in,  that  it  was  m.'ide  certain  the  case  was  dift'erent.  The  (ques- 
tion of  sufficiency  does  not  arise  directly  upon  the  record,  but  on 
the  bill  of  exceptions,  and  the  error  was  in  permitting  a  eunvic- 
tion  on  it. 

The  other  questions  are  closely  connected  with  this,  and  need 
not  be  considered  further. 

It  must  be  certified  to  the  court  below  that  the  verdict  should 
be  set  aside,  and  that  no  further  iiroceedings  on  this  charge 
sliould  be  had  under  this  information  as  it  stands. 

The  other  justices  concurred. 

XoTE.  — In /Voy)/t'  r.  Doris,  50  N.  Y.,  95,  which  was  a  proscoution  i'orail- 
vi.-ijig  and  proLurins:  a  woman  to  submit  to  the  use  of  an  instruuK'nt,  and  to 
tiilvi' (lruj,'s  iiiul  nu'dicinos  fortlio  purpot-i.'  of  in'ocuriii^;  a  misoiimaf^o,  and  thon.'Iiy 
cuisinj,'  the  death  of  niotlier  and  ehihl,  it  was  hekl  that  the  w.nian's  dyiny  de- 
(luriitions  wove  not  admissihle  against  the  respondent,  liecause  the  death  of  tlio 
womainviis  not  tiie  suhject  of  the  eliarye,  sueh  death  heinj,'  merely  an  ayj/i-ava- 
tionof  tiio  veal  cliar<?e,  whieli  was  the  prrsuadiny  her  to  submit  to  and  take 
lueiisuros  to  procure  the  miscarriage. 


Lkiukk  vs.  Comjionwealth. 
(Or.ush,  Ky.,  11.) 
Homicide:    Djli\ij  (IcdaratloHn  —  Erroneous  chco'gc. 

On  a  trial  for  murder,  dying  declarations  of  tlie  deceased  should  bo  restiicted 
to  the  act  of  killing  and  the  circumstances  inur.eiliately  attending  it,  and 
fonning  part  of  the  res  ijesUi',  and  it  is  error  to  allow  them  to  bo  given  in 
cndonce  as  to  distinct  transactions  from  which  the  jury  may  infer  malice  on 
the  part  of  the  respondent  toward  the  deceased. 

On  a  trial  for  murder,  a  charge  thiit  '*  if  tlie  jury  find  that  the  respondent 
strack  the  deceased  with  apiece  of  wood,  \"bich  was  Hkely  to  produce  death 
when  used  as  he  did  use  it,  and  that  deceased  died,  etc.,"  is  eiToneous  in  as- 
suming as  a  fact  that  respondent  used  the  piece  of  wood  in  a  manner  calcu- 
lated to  produce  death. 


810 


AMERICAN  CRIMINAL  REPORTS. 


ITamdin,  J,  Tliis  njipeal  is  prosecuted  for  tlic  reversal  of  a 
ju(li,'mont  mid  sentence  of  death,  rendered  upon  a  verilict  con. 
victingthe  appellant  on  an  indictment  for  the  murder  of  Clmrlw 
Goen  newel  n. 

In  the  arijument  for  the  appellant,  the  correctness  of  the  action 
of  the  circuit  court  is  questioned,  both  as  to  its  ruling's  in  rela- 
tion  to  the  adniissihility  of  evidence,  and  upon  various  propiw- 
tions  to  instruct  the  jury.  The  first  question  thus  ]jrescnted  for 
the  determination  of  this  court,  and,  as  we  conceive,  the  lUd-t 
im]K)rtant  one  which  it  will  be  necessary  to  decide,  i.<,  as  to  tlie 
coini)etoncy  of  certain  statements  which  were  made  hy  (toenne- 
Avein  shortly  before  his  death,  and  which  were  proved  and  ad- 
mitted as  evidence,  notwithstanding'  the  objections  of  tlietlcfcnd- 
ant,  as  the  dying  declarations  of  the  deceased,  to  be  considered 
by  the  jury  together  with  othw  evidence  con<lucii)g  to  sustain 
the  charge  in  the  indictment.  Those  declarations  not  only  cim- 
duced  to  identify  the  defendant  as  the  perpetrator  of  the  allc^vl 
homicide,  and  to  establish  and  explain  the  circumstances  of  tlie 
res  fjt'Ktfc^  but  also  i)urporte<l  to  disclose  former  and  distinct 
transactions  not  relating  to  the  particular  facts  constituting  tk 
subject  matter  of  the  charge,  oi  the  identification  of  the  defend- 
anf,  but  from  whicli  the  jury  might  have  inferred  the  existeuio 
of  malice  on  the  part  of  the  appellant  towai-ds  the  deccaad. 
And  the  essential  inquiry  involved,  and  on  which  the  correctncj! 
of  tlie  ruling  of  the  court  under  consideration  seems  solely  tu 
depend  is,  whether  the  court  did  not  err  in  admitting  so  mucli 
of  the  dying  statements  of  the  deceased  as  did  not  relate  to,  and 
were  not  necessary  to  establish  the  circumstances  or  direct  trans- 
actions from  which  his  death  resulted,  and  to  identify  and  con- 
nect the  defendant  with  them. 

On  this  question  there  is  some  contrariety  of  adjudicatioii; 
but  the  decided  weight  of  authority  on  the  subject  seems  to  be 
to  the  eftect  that  it  is  a  general  rule  that  dying  dechirations,  al- 
though made  with  a  full  consciousness  of  api)roaching  death,  are 
only  admissible  in  evidence  where  the  death  of  the  deceased  i? 
the  subject  of  the  charge,  and  the  circumstances  of  the  death 
the  subject  of  the  dying  declarations.  1  AVhart.  Am,  Crim.  L.. 
see.  G75;  2  Russell  on  Crimes,  p.  7G1;  Rose.  Crim.  Ev.,  p.  :23; 
1  Greenl.  Ev.,  sec.  150;  Nelson  v.  The  State,  7  JIumpli.,  5^-; 
State  V.  Sheto7i,  Jones'  Law,  N.  C,  3G0. 


«t    mi  2~ii'i£i~-%.-+.  ^ 


UDDERZOOK  r.  COM.MONWEALTH. 


311 


Tlie  ailinissicm  of  tlyiiij^  declarations  as  evidence  being  in  dero- 
(mtion  of  the  general  rule,  which  subjects  the  testimony  of  wlt- 
iies.^es  as  ordinarily  received  to  the  two  important  "tests  of 
truth,"  an  oath  and  a  cross-examination,  it  is  obvious  that  such 
eviilencc  should  be  admitted  only  upon  grounds  of  necessity  and 
public  policy,  and  should  be  restricted  to  the  act  of  killing  and 
the  circumstances  immediately  attending  it,  and  forming  a  part 
of  the  I'l's  (jtdw. 

It  results  that  in  our  opinion  the  court  erred  to  the  prejudice 
of  the  appellant,  in  admitting  a  part  of  the  dying  statements  of 
Goennowcin,  however  competent  the  residue  may  have  Ixion,  and 
fur  that  cause,  if  for  no  other,  the  judgment  should  be  reversed. 
Wit.,  reference  to  the  action  and  decision  of  the  court  upon  the 
motions  to  instruct  the  jury,  we  deem  it  sufHcIent  to  say  that 
while  we  i)erceive  but  little  if  any  ground  for  comjdaint  as  to  most 
of  thcni,  the  sl.xth  instruction  which  the  court  gave  is  objection- 
able, in  that  it  assumes  as  a  fact  that  the  a])pellant  used  the  iu- 
stnuiient  with  which  he  was  charged  to  have  slain  Goenne- 
wein  in  a  manner  calculated  to  produce  death.  Wo  would  sug- 
jrest,  moreover,  that  we  regard  the  instructions  given,  when  con- 
sidered together,  as  somewhat  too  numerous  and  proli.v  for  a 
lierspicuous  presentation  of  the  law  of  the  case. 

Wherefore  the  judgment  is  reversed,  and  the  cause  remanded 
for  a  new  trial,  on  principles  not  inconsistent  with  this  opinion. 

Note.  —  lliat  ]iart  of  the  sixth  instniction,  which  the  court  held  to  he  orroncons, 
read.Mis  follows:  "  if  the  jury  helievc,  from  tlio  oviilonce,  to  the  exclusion  of  ii 
iviLsoniible  (louht,  tliat  the  ticcused,  not  in  his  uiiinirently  necessary  defense,  hut 
of  his  malice  aforethou^'ht,  ami  without  considerahle  provocation  yiven  at  the 
time  ho  assaulted  and  struck  the  deceast'd  with  a  iiieco  of  wood,  which  was  Ukely 
to  produce  death  wh.en  used  as  lie  did  use  it,"  etc. 


Fddeijzook  vs.  Commonwealth. 

(76  Pa.  St.,  340.) 

Homicide  :    Photography  —  Evidence — Practice. 

On  a  tiial  for  homicide,  a  photograph,  clearly  proven  to  ho  a  photograph  of  the 
the  deceased,  was  shown  to  a  witness,  who  testified,  under  objection,  that  it 
resembled  the  body  found  supposed  to  be  tliat  of  the  deceased.    No  e\i- 


W<r.'  '' 


! 


•I': 


I 


12  AMERICAN  CRIMINAL  RErORTS. 

(Icnro  was  frivon  that  tlio  iiliotof,Taph  was  a  pood  pichiro,  or  ll^i  to  its  rosom- 
lilaiu'r  to  till'  ili'ct'ascd.     'J'lu>  evidence  wius  lield  jn'operly  adiiiitti'il. 

Courts  will  take  judicial  eoj,'ni/anc(^  that  plioto^^raijliy  proihicrs  (uri-i'it  like- 
iicsses,  the  production  of  the  jiiioto^^raiih  beinj;  governed  I i.v  the  (nidation 
of  natural  law>. 

For  the  pnr|ii).-e  of  identifying,'  deceased  with  one,  who  at  one  time  went  uihIit 

a  diU'ereiif  name,  it  is  jirnjier  to  jirove  tliat  lioth  were  in  tlu'  hahituf  bceom- 

ini,'  intuxieatt'd.     I'ersiaud  liahils  are  nn'ans  uf  identilicati(]n. 

There  is  ni>  errr.r  i  \  r.Ildwie.u  a  ,jui-y  to  take  documents  to  the  jury  nuiiii,  wlu'r, 
It       1  1  .1.    "ill",     .'i,.       1    ...I'l.'jii     i\      •         1 


I're  is  nil  errr.r  i  \  r.Ildwie.u  a  ,jui-y  to  take  documents  to  the  jury  nuiiii,  wlu'r, 
they  I'.ave  lieru  ailmitted  in  evidence  and  exhibited  to  tlie  jury  ihuiii^j'th'' 
trial. 


AciXKW,  C.  J.  This  is,  iiulocd,  u  straiiii^o  caso,  a  {((inuiiiation 
l)y  two  tit  clu'at  iiisuraiicT  coinpanios,  and  a  immk'r  of  one  hv 
tlie  otli'T  to  reap  the  I'niit  of  tlio  fraud.  AViiiileld  Scott  Goss. 
an  iiiluiltitant  of  IJaltiinoro,  liad  iiisuriMl  his  lifi;  to  the  aiiioiint 
of  f?i!ri,0(i().  lie  was  last  soon  at  liis  sht)]),  ou  the  York  roml,  n 
sliort  dislaiu'O  from  IJaltiinoro,  on  tlio  ovoiiini^  of  tlie  :2d  of  Feli. 
ruary,  ls7:i,  in  conipany  with  Wiiliiini  E.  Udderzook,  his  brotli- 
or-in-law,  tho  jirisonor,  and  a  younji;  man  living  near.  They  left 
him  to  i;'o  to  the  house  of  the  youn:i;  man's  father. 

In  a  short  time  the  slio])  was  discovered  to  he  on  lire.  After 
it  had  huriied  down,  a  body  was  drawn  out  of  tho  lire,  siij'posed 
to  he  that  of  (u.iss.  (Maims  were  niaue  n])on  the  iiisurauee  com- 
panies, tlu;  jn-isoner  heini:^  active  in  p,ro.secutini^  them.  On  the 
r.itth  (^f  .Iun(,'.  isTo,  the  jtrisonor  and  ii,  stranj^tir,  a  man  idcidilieil 
as  Alexander  (-.  Wilson,  apjieai'i'd  at  .leiuicrville,  in  ('licster 
county,  this  state,  and  remained  over  ni<j;ht  and  the  next  day. 
\\\  the  evenin:u^  'Tidy  1st,  the  prisoner  and  the  stramjer  left  Jeii- 
nerville  together  in  a  hu:r,i,'y.  ^'extday,  on  heiui^  met  and  uskeil 
v/hat  had  hecomeoi:  his  com))ani<in,  the  jtrisoner  said  he  had  left 
him  at  I'arkershuri^.  On  the  11th  of  .July,  the  body  of  a  man, 
identilled  on  the  trial  as  W.  S.  CJoss,  or  A.  C.  Wilson,  was  foiiiiil 
in  Jiaer's  woods,  about  ten  miles  from  Jennerville,  the  head  and 
truidv  buried  in  a  shallow  Intle  in  one  ])lace,  ami  the  arms  mid 
b';^s  in  another.  The  straiii^er,  who  was  with  the  jirisoner  !it 
.lenncrville,  itlentified  as  A.  i).  Wilson,  was  tracoil  from  jdacotn 
jilaco,  liviiit;'  in  ret iren'ent,  from  June  2'2,  1872,  until  within  i' 
day  or  two  of  th(!  time  when  ho  aj)peared  with  the  jirisoiier  at 
Jennerville.  Diirini^  this  i.iterval  this  ])risoner  and  Wilson  were 
^ccn  to^^ethcr  several  times,  under  circumstances  in(licatiii<;,i,'reat 
intiimiey  and  privacy.     Wilson  has  not  been  seen  or  heard  of 


UDDERZOOK  v.  COMMONWEALTH. 


313 


■Hi     T  S  i^' 


since  tiic  cvoniiif^  of  July  1st,  1S73,  wlien  lie  left  Jenncrville  in 
coinpaiiv  witli  the  ]>ris()iior.  Tlie  ijreat  (piestioii  in  tlic  case  was, 
the  iiidc'iititv  <»'"  '^-  ^'-  AVilsoii  as  W.  S.  (toss.  This  was  cstab- 
Ijjlied  hy  u  variety  of  eirciuiistances  aii<l  many  witnesses,  leav- 
iiifr  iiixldiiht  tliat  (i(»ss  and  Wilson  were  tlie  same  ])erson,  and 
tliiit  the  hody  found  in  IJaer's  woods  was  tiiat  of  (Joss. 

All  the  hills  of  exceptions,  exee]>t  one,  relate  to  tliis  question 
(if  identity,  the  most  material  heiiii^  those  relatinj;'  to  tlie  use  of 
II ijhotoijraph  of  Goss.  This  ]diotoi^raph,  taken  in  Haltiniore  on 
the  ?iUiio  plate  with  a  gentleman  named  Lang-ley,  was  clearly 
proved  hy  him,  and  also  by  the  artist  who  took  it.  ]\[aiiy  ob- 
jeetmns  were  maile  to  the  use  of  this  ])hot()graph,  the  chief  be- 
iiii;  to  the  admission  of  it  to  identify  Wilson  as  (jloss;  the  pris- 
imer's  ciPiiiistd  regarding  this  use  of  it  as  certainly  incompetent. 
Th:it  a  jiortrait,  or  a  miniature,  painted  from  life  ami  proved  to 
rc?endile  the  jierson,  maj'  he  used  to  identify  him,  cannot  bo 
(loiiltted,  though,  like  all  other  evidences  of  idi'iitity,  it  is  open 
to  disproof  or  doubt,  and  must  ho  determined  hy  the  jury. 
Tliere  seems  to  he  no  reaso)>  why  a  ])liotograjdi,  ])roved  to  bo 
taken  from  life,  and  to  resemble  the  person  photogra[)licd,  should 
not  till  the  same  measure  of  evidence.  It  is  true,  the  jdioto- 
f^raplis  we  see,  are  not  the  original  likenesses;  their  lines  are  not 
traced  hy  the  hand  of  the  artist,  nor  can  the  artist  be  called  to 
testify  that  he  faithfully  limned  the  ])ortrait.  They  are  but  pa- 
per eopies,  taken  from  the  original  plate,  called  the  negative, 
made  sensitive  by  chemicals,  and  printed  by  the  sunlight 
tlii'onifh  the  camera.  It  is  the  result  of  art,  guided  by  certain 
principles  of  science. 

Ill  the  case  before  us,  such  a  jdiotograph  of  the  man  Cioss  was 
presented  to  a  witness  who  had  never  seen  him,  so  far  as  wo 
knew,  hut  had  seen  a  man  known  to  him  as  W^ilson.  The  ])ur- 
piise  was  to  show  that  (Joss  and  Wilson  were  one  and  the  same 
person.  It  is  evident  that  the  coinpeteiu;y  of  the  evidence  in 
such  a  ea>e  de))eiids  on  the  reliability  of  the  photograph  as  a 
Work  of  art,  and  this,  in  the  case  before  ns,  in  which  no  ])roof 
Mas  made  by  e.\i)erts  of  this  reliability,  must  depend  ui)on  the 
I'lulicial  eogiiizan(!e  we  may  take  of  photographs  as  an  established 
means  of  producing  a  correct  likeness.  The  ],)aguerrean  pro- 
cess was  lirst  given  to  the  Avorld  in  1S3!).  It  was  soon  followed 
by  photography,  of  which  wc  have  had  nearly  a  generation's  ex- 


.■■!'■;; 


j?|i 


■^i< 


314 


AMERICAN  CRIMINAL  REPORTS. 


perience.  It  has  become  a  customaiy  and  a  common  mode  of 
taking  and  preserving  views  as  well  as  the  likenesses  of  persons 
and  has  obtained  universal  assent  to  tlie  correctness  of  its  deliu- 
cations,  We  know  that  its  princii)les  are  derived  frun>  science- 
that  the  images  on  the  plate,  made  by  the  rays  of  light  tlirongh 
the  camera,  are  dependent  on  the  same  general  laws  which  pro. 
duce  the  images  of  orttward  forms  upon  tiie  retina  through  the 
lenses  of  the  eye.  The  process  has  become  one  in  general  use, 
so  common  that  we  cannot  refuse  to  take  judicial  cognizance  of 
it  as  a  proper  means  of  producing  correct  likenesses. 

But,  hajipily,  the  proof  of  identity  in  this  case  is  not  depend- 
ent on  thb  photograph  alone.  Letters  from  AV^ilson  idontitied  as 
the  handwriting  of  Goss;  a  peculiar  ring,  belonging  to  Gocs, 
worn  upon  the  finger  of  Wilson;  the  recognition  of  Wilson, liy 
A.  C.  Goss  as  his  brother;  packages  addressed  to  A.  C.  (ioss,  and 
envelopes  bearing  the  marks  of  the  firm  with  which  W.  S.  Goss 
had  been  employed,  coming  and  going  to  and  from  Daltiinorc. 
and  many  otiier  circumstances  following  u])  the  man  Wilson, 
leave  no  doubt  of  his  identity  as  Goss  independently  of  the 
photograph. 

The  objection  to  the  ])roof  of  Goss'  habits  of  intoxication  v 
equally  untenable.  True,  the  habit  is  common  to  niiiny,  and 
alone,  would  have  little  weight.  But  habits  are  means  of  identi 
fication,  though  v;ith  strength  in  proportion  to  their  peculiarity. 
The  weight  of  the  habit  was  a  matter  for  the  jury. 

It  is  ujinecessary  to  follow  the  bills  of  c.\cei»tions  in  detail. 
They  all  relate  to  facts  and  circumstances  bearing  on  the  (jues- 
tion  of  identity.  If  the  bills  of  exceptions  are  many,  llicy  only 
denote  that  the  circumstances  were  numerous,  and  in  this  nuilti- 
plication  consists  the  strength  of  the  proof. 

They  are  the  many  links  in  a  chain  so  long  that  it  encircles 
the  prisoner  in  a  double  fold.  The  (juestions  put  to  (J.  P.  Moore, 
A.  II.  Barnitz  and  A.  11.  Carter  were  unobjectionable.  A^liether 
they  really  could  not  identify  the  dark  ami  swollen  face  of  the 
corpse,  it  was  not  for  the  court  to  decide;  its  weight  belonged 
to  the  jury. 

There  was  no  error  in  permitting  the  jury,  after  their  return 
into  the  court  for  further  instructions,  to  take  out  with  them,  at 
their  own  request,  the  letters,  check,  due  bill  and  a])plication  for 
insurance,  papers  which  had  been  i)roved,  read  in  evidence  and 


^mimmfmmm 


l^ilm 


FRASER  V.  STATE. 


315 


commented  on  in  the  trial.  The  appearance,  contents  and 
liaiid-writiiig  of  tliese  documents  were  no  duubt  important, 
and  to  be  respected  by  the  jury,  who  could  not  be  expected 
to  carry  all  tliese  features  in  their  minds.  It  is  customary  in 
niurder  cases  to  permit  the  jury  to  take  out  for  their  examina- 
tion the  clothing  worn  by  the  deceased,  exhibiting  its  condition, 
the  rents  made  in  it,  tlie  instrument  of  death,  and  all  tilings 
in'oved  and  given  in  evidence  bearing  on  the  commission  of  the 
offense. 

■\Ve  discern  no  error  in  this  record,  and  therefore  affirm  the 
sentence  and  judgment  of  the  court  below,  and  order  this  record 
to  be  remitted  for  execution. 


Fkaser  vs.  State. 

(55  Ga.,  325.) 

Homicide:    Evhlawe —  'Motive  —  Admlistons. 

On  a  prosecution  for  iminlor,  evitlonce  that  tho  respomlent's  wife  being  dead, 
ho  colm'titi'd  illicitly  with  a  stt'p-daugliter,  and  was  anxious  to  many  her, 
and  that  deceased  had  taken  the  step-daughter  to  his  houxo  and  refused  to 
give  her  up,  and  that  deceased  had  contested  in  a  habeas  corpus  case  the 
right  of  resiiondent  to  get  the  step-daughter  and  oiher  step-chikken  back 
to  his  houne,  is  admissible  as  tending  to  show  a  motive. 

On  a  trial  for  murder,  any  evidence  which  tends  to  show  a  motive  is  material 
iuid  aibiiLssiijli,'. 

On  a  ti'ial  of  respondent  for  nun-dering  a  man  who  had  broken  up  illicit  intcr- 
coursi>  between  respondent  and  his  step-daughter,  and  continued  to  prevent 
such  intercoiu'se,  letters  of  respondent  showing  great  anxiety  to  get  posses- 
sion of  the  step-daughter's  person  are  admissible  as  timding  to  show  motive. 

On  a  trial  for  tVlony,  any  statements  which  have  been  nuule  by  the  respondent 
as  to  any  fact  circumstantially  material  to  the  issue  lU'o  admissible  against 
him.  Accordingly,  where  it  was  material  to  show  that  respondent  had  rid- 
den very  fa.;t,  it  was  /<t7r/  coini)etent  to  prove  his  previous  statements  as  to 
the  spi'i'd  of  his  horse. 

hi  this  case,  the  evidence  is  held  sufficient  to  warrant  the  verdict  of  guilty. 


Jackson,  J.  Dr.  Joseph  13.  Dunwoody  was  murdered  at  the 
door-sill  of  his  house  in  Houston  county,  under  circumstances  of 
great  atrocity,  lie  was  called  out  between  ten  and  eleven  o'clock 
at  night,  as  if  to  visit  a  patien'.,  and  while  talking  to  the  mur- 


m 


;  <i' 


I ,. 


;•    » 


316 


AMERICAN  CRIMINAL  REPORTS. 


derer  about  the  supposed  sick  person,  he  was  shot  down  by  the 
false  messenger.  Suspicion  rested  upon  the  defendajit;  lie  was 
arrested,  tried  and  found  guilty,  and  being  rcconunended  to 
mercy  by  the  jury,  was  sentenced  to  the  penitentiary  fur  life, 
A  motion  was  made  for  a  new  trial  on  various  grounds,  it  was 
overruled  oil  all  of  them,  and  the  case  comes  before  us  for  review. 
The  evidence  is  very  voluminous;  the  question  turns  on  cir- 
cumstantial testimony,  and  without  going  into  detail,  it  will  Lo 
sufficient  to  state  briefly  the  points  made  in  the  motion  for  a  new 
trial,  and  the  facts  on  which  these  points  rest  for  decision. 

1,  2.  The  defendant  had  step-children;  his  wife  M'as  dead;  one 
of  these  ste])-children  he  cohabited  with  illicitly,  and  soiiijlit  to 
marry  her.  They  alt  left  him,  and  deceased  took  thom  to  his 
liouse  and  cared  for  them,  and  this  testimony  was  admitted  to  i^o 
to  the  jury.  "We  think  it  legal  as  showing  motive  in  the  defcml- 
ant  to  kill,  and  coupled  with  an  effort  to  get  them  back,  aiul  rc- 
sistance  on  the  part  of  deceased  in  a  habeas  corpus  case,  it  is 
admissible  tu  show  malice,  and  therefore  one  ingredient,  and  the 
main  one,  of  murder. 

3.  Letters  were  also  introduced  showing  an  eager  desire  to  get 
possession  of  the  step-daughter,,  whom  he  wished  to  marry;  one 
to  her  and  one  to  another  person,  one  without  date  and  the  other 
purjiorting  to  come  fi'om  Atlanta,  where  defendant  had  nut  lioeii. 
One  of  the  letters  admitted  the  incestuous  intercourse  witli  tlio 
girl.  These  were  also  objected  to.  We  think  them  admissible 
for  the  reasons  given  above. 

4.  The  court  told  the  jury  that  the  state  claimed  that  there  had 
been  a  didiculty  between  deceased  and  prisoner,  and  that  they 
should  see  about  that;  and  this  was  objected  to  as  an  erruueous 
charge.  We  think  the  charge  right.  There  had  been  difliculties 
about  these  children,  especially  the  much  injured  girl,  and  it  was 
proper  for  the  jury  to  consider  tliem. 

0.  It  is  also  complained  that  the  sayings  of  defendant  tilioiit 
the  speed  of  his  horse  were  admitted  to  go  to  the  jury.  It  was 
right,  we  think.  The  defendant  was  twelve  or  thirteen  miles  ort 
at  eight  o'clock  at  night  or  after,  and  the  speed  of  the  horse  to 
show  that  he  could  make  the  distance  by  a  little  after  ten,  in  less 
than  two  hours,  was  material  to  the  issue,  and  lie  ought  to  have 
known  how  swift  the  horse  he  was  riding  was,  and  his  sayings 
are  against  himself. 


( 

1 


FRASER  V.  STATE. 


317 


C.  The  verdict,  we  think,  is  right;  at  all  events,  it  was  for  the 
jury  to  decide  on  the  facts.  Their  decision  is  sustained  by  the 
evidence,  and  is  not  against  law.  Ko  complaint  is  made  of  the 
cliaro-e  except  upon  the  single  jioint  alluded  to  about  the  diffi- 
culty between  deceased  and  defendant,  and  we  ])rcsumc  the  court 
gave  the  law  correctly  as  to  circumstantial  evidence,  and  how  full 
and  clear  and  exclusive  of  other  rational  theories  of  the  case,  con- 
sistent with  the  evidence,  it  should,  be,  to  authorize  a  conviction. 

Defendant  said  he  had  been  to  kill  a  man,  who  was  not  at 
Lome,  the  night  before,  and  the  murderer  was  at  Dunwoody'a 
the  night  before,  and  Dunwoody  was  not  at  home.  Defendant 
had  a  duuble-barreled  shot-gun,  and  rode  a  horse  such  as  is  de- 
scribed. This  gun  was  loaded  Avith  the  sort  of  buckshot  which 
killed  deceased,  and  in  the  door  and  house  where  the  killing  was 
done,  lie  took  ten  buckshot  to  load  it,  one  fell  on  the  floor  and. 
did  not  go  in  the  gun,  and  nine  were  found.  One  witness  recog- 
nized him  on  the  gray  horse,  and.  riding  rapidly  towards  Dun- 
woody'p-  house.  Many  saw  him  but  failed  to  recognize  his  face, 
but  the  description  the}'  gave  fit  his  appearance.  He  failed  to 
account  for  his  absence  from  the  party  at  Scarborough's,  from 
eight  o'clock  to  nearly  midnight,  and  to  account  for  his  having  a 
double-barreled  gun,  and  taking  it  to  the  party,  and  leaving  it 
outside  concealed;  and  his  own  statement  is  by  no  means  satis- 
factory. He  was  absent  from  three  to  five  hours  from  the  party, 
and  in  his  statement,  said  he  had  gone  to  sleep  in  a  fence  corner, 
after  trying  to  see  a  woman  of  easy  virtue,  who  was  not  at  home, 
and  could  show  by  no  one  who  told  him  that  she  was  not  at  home. 
The  night  was  very  cold.  On  the  whole,  we  think  he  got  off 
veil  by  the  recommendation  to  mercy,  and  his  consequent  im- 
prisoiunent  for  life,  and  we  decline  to  interfere. 

Judtjinent  affinned. 


'  '-'''M 


^ 


"^^s^ 


318  AMERIC.VN  CRIMINAL  REPORTS. 

McCuLLOcii  vs.  State. 

(48  Ind.,  109.) 

Homicide  :    Corpus  delicti  —  Circiiiustantial  emlenee  —  Confemons, 

Oi.  lor  murder,  it  appeared  that  a  skeleton  had  lieen  found  corrospondintr 

1!'     y,  ,'  "^  and  rare  with  tlio  man  whom  respondent  was  charjfod  with  kill- 

'   .  .     7'.  / '(,  that  this  was  sufficient  direct  evadence  of  a  rorjDisileJirti,  and 

sufficiently  laid  the  foundation  for  proving  the  skeleton  to  be  that  of  the  mur- 

if  :d  man  ly  ciirumstantial  evidence. 

On  n.  triai  "  mi..'  i  ho  prosecution  put  on  the  stand  a  convict  who  li.id  been 
confined  in  pii.-nr.  v.'itl'.  (iio  re.siwndent.  The  convict  testified  that  rwpond- 
ent  had  told  him  that  he  had  killed  a  man  whom  hi.s  conversation  idi'iititi./il 
as  the  murdered  man,  and  thaf  re>ipondent  was  afraid  he  would  he  tried  for 
it  when  he  j^ot  out.  7/(7(7,  that  a  charge  which  refeiTed  to  this  ovidonce  as 
tending  to  show  a  voluntary  confession  without  inducement  was  not  eno- 
neons. 

WuRDEX,  J.  The  appellant  was  indicted  in  the  court  below 
for  the  murder  of  William  C.  Morgan,  aTid,  upon  trial,  was  con- 
victed and  sentenced  to  imprisonment  for  life  in  tlie  state  prison. 
His  counsel  have  filed  an  able  and  elaborate  brief,  insisting  that 
the  verdict  was  not  sustained  by  the  evidence,  and  that  tlie  court 
erred  in  its  charges  to  the  jury.  We  have  read  the  evidence  with 
care,  and  although  it  is  mostly  circumstantial  in  its  cliaracter, 
we  are  satisfied  tliat  it  established  the  guilt  of  the  a])penant  with- 
out any  reasonable  doubt. 

On  the  5tii  of  ^lay,  1SC5,  the  deceaswl  started  from  Wisconsin, 
with  a  pair  of  horses  and  a  covered  wagon,  to  come  to  Indiana. 
Some  one  got  into  the  wagon  with  him,  not  shown  to  have  been  tlie 
appellant;  but  it  was  shown  that  the  deceased  .and  the  ajipelhuit 
had  previously  made  an  arrangement  to  come  together.  This 
was  the  last  that  was  ever  seen  or  heard  of  Morgan  by  his  friends 
or  relatives. 

In  the  autumn  of  18G7,  a  human  skeleton,  not  quite  entire,  of 
the  male  sex  and  Caucasian  race,  and  corresponding  very  well 
in  point  of  size  with  ]\Iorgan,  was  found  in  a  slough  or  poricl, 
not  far  from  a  higliway  in  IJenton  county,  Indiana. 

The  skull  had  a  hole  in  the  lower  posterior  part,  and  a  cut  or 
gash  on  the  to]i,  apparently  made  with  some  sharp  instrument. 
The  latter  could  not  have  been  self  inflicted,  and  was  sufficient  to 
cause  death. 


^T*?^ 


McCULLOCH  V.  STATE. 


319 


A  chain  of  circumstances,  proved  on  the  trial,  led  to  tlie  con- 
chifion  beyond  any  reasonable  donbt,  that  the  skeleton  was  that 
of  William  C.  Morgan,  and  that  the  appellant  was  guilty  of  his 
immler. 

Tlie  circumstances  arc  too  numerous  to  be  detailed  in  this  opin- 
ion, and  no  good  purpose  would  be  subserved  by  setting  them 
out.  We  are  entirely  satisfied  with  the  conclusion  arrived  at  by 
tlic  jury  upon  the  evidence. 

The  following  are  the  charges  excepted  to  by  the  defendant: 

"G.  To  warrant  a  conviction  in  this  case,  yon  must  first  be  sat- 
isfied beyond  a  reasonable  doubt  that  the  skeleton  ofl^jred  in  evi- 
dence is  the  remains  of  a  human  being.  AVhen  this  fact  is 
proved,  then  the  state  may  prove  by  circumstantial  evidence,  that 
said  remains  are  those  of  AVilliam  0.  Moi-gau,  the  man  alleged 
to  have  been  killed;  and  may  also  prove  by  the  same  kind  of  evi- 
dence that  the  defendant  killed  him.  But  to  warrant  a  convic- 
tion on  circumstantial  evidence,  it  should  be  so  strong  as  to  ex- 
chide  every  reasonal)le  hypothesis  of  innocence. 

"  7.  Confessions  alleged  to  have  been  made  by  the  defendant  are 
to  be  received  with  great  caution,  and  are  entitled  to  no  consid- 
eration until  the  jury  are  satisfied  from  the  evidence,  beyond  a 
reasonable  doubt,  that  said  Morgan  was  murdered.  If  the  jury 
find  that  the  fact  of  Morgan's  murder  is  established  beyond  a 
reasonable  doubt,  by  evidence  independent  of  the  defendant's 
confession,  and  that  after  liis  death,  the  defendant  voluntarily^, 
and  without  any  inducement,  confessed  himself  guilty  of  the 
crime,  such  confession,  if  the  jury  find  beyond  a  reasonable  doubt 
that  it  was  made,  may  be  considered  by  them  as  strong  proof  of 
guilt." 

Tlie  counsel  for  the  appellant  insist  that  the  sixth  charge  is 
wrong,  inasmuch  as  by  it  the  jury  were  told  that  if  they  believed 
that  the  skeleton  ofi'ered  in  evidence  was  the  remains  of  a  human 
being,  the  state  might  prove  by  circumstantial  evidence  that  it 
was  the  romains  of  William  C.  Morgan.  They  insist  that  as  this 
was,  in  substance,  a  charge  that  the  corjms  (lelicti  might  be 
proved  by  circumstantial  evidence,  the  charge  was  clearly  wrong. 
Tliey  cite  in  snjiport  of  the  position  taken,  the  case  of  liuloff  v. 
TkPeuple,  18  N.  Y.,  179. 

It  niiiy  bo  conceded,  that  much  that  is  said  in  that  case  mili- 
tates against  the  charge  in  cpestion.     But  that  case  dift'ers  from 


I 

II 


320 


AMERICAN  CRIMINAL  RErORTS. 


tins.  Ill  tlmt  case,  the  defend.int  was  cliargod  witli  tlie  murder 
of  a  cliild.  Tliero  was  no  direct  proof  that  tlie  cliild  Uiis  (\q^i 
or  had  beoii  murdered,  or  that  lier  dead  body  had  ever  been  found 
or  seen  by  any  one..  The  jury  were  asked  to  presume,  and  find 
from  the  lapse  of  time  since  tlie  child  and  her  nu^ther  were  last 
seen,  and  from  other  facts  and  circumstances,  that  the  child  was 
dead,  and  had  been  murdered  by  tlie  prisoner.  The  conrt  ^e/t/ 
that  there  must  be  direct  ])ror!f  of  the  co)'j>i/-s  ddltti. 

Whether  the  court  would  have  ap])lied  the  doctrine  tu  a  case 
like  the  jiresent  is  rendered  quite  doubtful  by  the  clusinc  para- 
i^raph  of  the  opinion  in  the  cause.  "  If,"  says  the  court,  '*wliat 
is  said  by  these  writers  is  to  be  taken  as  intimatin>j^  their  opinion 
that  Lord  Hale's  rule  may  be  departed  from,  I  iind  no  jiuliciul  au- 
thority warranting  the  departure.  The  rule  is  not  fuiiiidedona 
denial  of  the  force  of  circumstantial  evidence,  but  in  the  danger 
of  allowing  an}'  but  unequivocal  and  certain  ])roof  that  some  one 
is  dead,  to  be  the  ground  on  whicli,  by  the  interpretation  of  cir- 
cumstances of  suspicion,  an  accused  person  is  to  be  convicted  of 
murder." 

In  the  case  in  judgment.,  the  skeleton  supplied  what  it  would 
seem  the  court  in  the  New  York  case  thought  to  be  lacking  in 
order  to  a  conviction  on  evidence  otherwise  circumstantial. 

In  the  case  of  the  State  v.  W/Jliams,  7  Jones,  N.  C,  44C,  it 
vrns/ichJ,  that  in  a  case  where  the  supposed  body  of  the  person 
alleged  to  have  been  murdered  liad  been  destroyed  by  lire,  leav- 
ing remains  shown  to  have  been  human,  the  cnrpiis  dtlhti  miglit 
be  proved  by  circumstantial  evidence.  So  in  the  case  oiStoch 
hujv.-TIi6  Sfatt',  7  Ind.,  320,  where  the  body  was  destroyed  liv 
fire,  this  court  said:  ^'Tho  co/j/ns  delicti  may,  like  any  other 
part  of  the  case,  bo  proved  by  circumstantial  evidence."' 

We  shall  not  enter  upon  an  extended  examination  of  the  au- 
thorities upon  this  question,  but  content  ourselves  with  the  cita- 
tion of  a  few  passages  from  elementary  writers: 

"  The  corpuH  delleti,  or  the  fact  that  a  murder  has  been  com- 
mitted, is  so  essential  to  be  satisfactorily  proved,  that  Lord  Ilale 
advises  tliat  no  person  be  convicted  of  culi)able  honilcido,  unless 
the  fact  were  proved  to  have  been  done,  or  at  least  the  body  found 
dead.  Without  this  proof,  a  conviction  would  not  '  v  ^-arnuited, 
though  there  were  evidence  of  conduct  of  the  prisoner  exhibit- 
ing satisfactory  indications  of  guilt.     But  the  fact  as  we  have 


Mcculloch  v.  state. 


321 


already  5cen,  need  not  be  directly  proved ;  it  being  sufficient  if 
it  be  established  by  circumstunccs  so  strong  and  intense  as  to 
produce  the  full  assurance  of  moral  certainty."     3  Greenl.  Ev., 

sec.  131. 

Bisliop  sfiys  (1  Jjish.  Crim.  Proc,  sec.  1070),  speaking  of 
the  doctrine  of  Lord  Hale:  "But  this  doctrine  is  rather  one  of 
caution  and  sound  judgment  than  of  absolute  law,  according  to 
what  appears  to  be  the  better  and  later  English  authority." 
A?ain,  tlie  same  author,  in  the  next  following  section,  says: 
'•If  we  look  at  this  matter  as  one  of  legal  principle,  we  can 
hardly  fail  to  be  convinced  that,  while  the  corj)U8  delicti  is  a 
part  of  the  case  which  should  always  receive  careful  attention, 
and  no  man  should  be  convicted  until  it  is  in  some  way  made 
clear  that  a  crime  has  been  committed,  yet  there  can  be  no  one 
kind  of  evidence  to  be  always  demanded  in  proof  of  this  fact,  any 
more  than  of  any  other.  If  the  defendant  should  not  be  con- 
victed when  there  has  been  no  crime,  so  equally  should  he  not 
he  when  he  has  not  committed  the  crime,  though  somebody  has; 
the  one  proposition  is  as  important  to  be  maintjiined  as  the 
other;  yet  neither  should  be  put  forward  to  exclude  evidence 
which  in  reason  ought  to  be  convincing  to  the  understanding  of 
the  jury." 

AVe  quote  another  paragraph  from  3  Greenl.  Ev.,  sec.  133: 
"But  though  it  is  necessary  that  the  body  of  the  deceased  be  satis- 
factorily identified,  it  is  nut  necessary  that  this  be  proved  by  direct 
and  positive  evidence.  Where  only  mutilated  remains  have  been 
found,  it  ought  to  be  clearly  and  satisfactorily  shown  that  they  are 
the  remains  of  a  human  being,  and  of  one  answering  to  the  size,  age 
and  description  of  the  deceased;  and  the  agency  of  the  prisoner 
in  their  mutilation,  or  in  producing  the  appearance  found  upon 
them,  should  be  established.  Identification  may  also  be  facili- 
tated hy  circumstances  apparent  in  and  about  the  remains,  such 
as  the  apparel,  articles  found  on  the  person,  and  the  contents  of 
the  stomach,  connected  with  proof  of  the  habits  of  the  deceased 
in  respect  to  his  food,  or  with  the  circumstances  immediately 
preceding  his  dissolution." 

Whatever  may  be  the  law  in  respect  to  cases  where  no  sup- 
posed remains  of  the  person  charged  to  have  been  murdered  have 
been  found,  as  was  the  case  in  Ituloff  v.  The  People,  siipra,  we 
are  of  opinion  that  the  charge  given,  as  applied  to  the  case  made 
Vol.  L  — 21 


^^^ 


\ 


322 


AMERICAN  CRIMINAL  REPORTS. 


1 


1)}'  the  evidence,  was  not  erroneous.  Circinnstantial  evidence  ns 
we  think,  wjis  clearly  competent  to  identify  the  skeleton  pniduml 
ns  the  remains  of  William  C.  Morgan,  as  well  as  to  BJiowtlie 
cause  and  manner  of  his  death. 

AVe  pass  to  the  seventh  instruction.  We  do  not  understand 
that  counsel  for  the  ap]>ellant  (question  the  corrcctnciss  of  this 
instruction  as  an  abstract  proposition;  but  they  insist  that  there 
was  no  evidence  given  to  which  such  charge  could  l)e  a])plie(l 
and  therefore  that  it  was  erroneous.  They  claim  that  tlie  iinpej. 
hint  made  no  deliberate  confessions  of  his  guilt,  and  that  tlio 
charge  was  calculated  to  do  him  harm,  by  impressinir  the  jury 
with  the  idea  that  what  he  did  say  amounted  to  such  confessiun. 
The  evidence  in  respect  to  the  confessions  of  the  appellant,  as  it 
appears  in  the  bill  of  exceptions,  is  as  follows: 

"  Henry  C.  Warrell,  a  witness  for  the  state,  being  d'.ily  swoni, 
testified  as  follows:  'lam  acquainted  with  the  defendant;  we 
roomed  together  in  the  Illinois  state's  prison;  I  knew  him  iii 
prison  as  James  McCulloch;  I  saw  him  frequently  for  gome 
three  years;  I  saw  him  the  spring  of  1872;  my  nieniorv  is  verv 
poor;  I  am  a  prisoner  myself;  there  was  considerabk'  talk  in  tlie 
prison  about  his  case  and  mine;  I  was  in  for  burglary;  I  heard 
him  make  remarks  about  being  uneasy  about  being  arrested  when 
his  time  was  up;  I  will  give  you  the  substance  of  it  as  well  as  I 
can  now  remember:  He  told  me  he  expected  to  be  arrested  on 
a  charge  of  murder;  he  said  he  had  killed  a  man  by  the  nameuf 
Morgan,  and  he  was  afraid  the  deceased  man's  father  wonld  ar- 
rest liim  when  his  time  expired;  that  the  only  proo^'  tliat  would 
be  against  him  was  that  he  was  seen  in  company  with  the  man. 
and  was  caught  in  possessson  of  his  team;  I  do  not  know  that 
there  was  much  more  said  at  that  time.  I  did  not  believe  it. 
and  did  not  pay  much  attention  to  it;  I  heard  him  make  little 
remarks  about  his  being  uneasy  about  being  arrested  when  lie 
got  out.  There  was  a  convict  in  prison  at  that  time  bv  the  name 
of  Col.  Cross,  a  kind  of  a  lawyer;  I  cannot  explain  every  word; 
he  went  to  him  for  information;  he  s.aid  they  had  found  the 
skeleton  that  was  said  to  be  the  man  he  murdered;  he  wanted  to 
know  if  it  \v(  uld  be  any  evidence  against  him,  if  it  could  not  he 
identified.  I  thin'-  Col.  Cross  said  it  would  be  no  evidence 
against  him ;  and  that  is  all  the  conversation  I  heard,  except  his 
expression  about  being  uneasy;  he  got  some  letters  from  his 


MuCULLOCU  V.  STATE. 


323 


wife*  lie  saul  there  was  notliiiif^  saul  lately  about  the  Morgan 

ease.' 
"On  cross-examination,  the  witness  testified  as  follows:    *I 

am  a  convict,  and  have  lieen  convicted  on  three  different  indict- 
ments f(»r  biir^'liiry;  sentenced  ten  j-ears;  have  served  five  years 
ami  ftJiii' J'"^"*^!'^ '^^  the  time;  1  was  brought  hero  in  chains;  I 
left  tlicin  off' outride;  the  defendant  told  me  in  this  sameconver- 
jiition,  and  at  other  times,  that  ho  wanted  them  to  take  him  out 
iiiiJ  try  him  then,  and  not  bother  him  when  his  time  was  out; 
ill  this  siuue  conversation  I  spoke  of  awhile  ago,  ho  said  he  was 
ail  innocent  man;  that  ho  was  innocent  of  the  charge;  my  mem- 
ory is  very  poor;  he  always  said  he  wanted  to  be  tried  then  for 
the  charge,  and  not  bo  bothered  when  he  got  out;  ho  never  said 
lie  wanted  to  get  out  and  be  tried  after  the  skeleton  was  found.'  " 

The  evidence,  as  it  comes  up  to  us,  is  a  little  obscure  in  this, 
that  it  docs  not  very  distinctly  aj)pear  to  what  conversation  the 
witness  alluded  as  the  one  he  spoke  of  "  awhile  ago,''  in  which 
the  defendant  said  he  was  an  innocent  man,  etc.  The  witness 
had  spcdven  of  several  conversations.  In  one  of  these  the  defend- 
ant, according  to  the  witness,  said  ho  had  killed  a  iiuiu  by  the 
name  of  Morgan,  etc.  Then  the  defendant  had  a  conversation 
with  Col.  Cross,  and  took  his  advice.  Then  he  said  at  other 
times  that  he  wanted  them  to  take  him  out  and  try  him,  etc.  It 
dues  not  appear  in  which  of  these  conversations  it  was  that  ho 
said  he  was  innocent.  It  cannot  be  rightfully  assumed  that  it 
was  necessarily  in  the  one  in  which  ho  said  he  had  killed  a  man 
by  the  name  of  Morgan. 

With  this  evidence  before  the  jury,  we  think  the  court  was 
clearly  justified  in  giving  the  charge  in  question.  There  is  no 
error  in  the  record,  and  the  judgment  below  nxust  be  affirmed. 

Thejiulgment  below  is  afiirmed,  with  costs. 


■  r 


324 


AMERICAN  CRIMINAL  REPORTS. 


i ', 


^^^K^   ^.y: 

.\ 

f 

Dvn^s  vs.  Statk. 
(49  Ala.,  370.) 

Homicide:   Evidence  — Atlmissiuns  —  Thnnts  hij  deceased  —  His  fjcstie—Em  ■ 

iiiiint  he  injiiriuiis. 

On  a  trial  for  innnlt'r,  whcro  tin;  iirosociition  Imvo  pi-ovfil  istntoinonts  niiulel, 
thf  rcHiiomli'iit  iimnuiUiiti'ly  iiitor  tlio  killing',  U'luliiit,'  to  .-luiw  tlmt  lii>  kill.il 
the  (Ica'iisi'il,  the  rt^ponJi'iit  has  a  riyiit  to  Inivi;  tliu  wliulf  loiivin'sutign  n,. 
(•lii(lin<.;  tln'  pxpliiiiatiou  that  lie  then  miule  of  tlie  fnct. 

But  the  record  not  disciosinj,'  wliiit  tlie  ve>])onilent  expecteil  to  provo  hy  awi;. 
Jien8,  tho  wjurt  camiot  reverse  the  jiidj-nient  Ih-cause  the  triiil  court  cxiliiilil 
II  lej^al  iiuestion.    For  all  that  niii>ears  under  such  cuinnnj-tiiiiccs,  the  t 
elusion  oi  the  question' nuiy  have  been  a  henelit  to  the  resiMjiulcnt, 
must  atfimiatively  aiipeiu- liy  the  record  that  an  error  coiniiiaiucd  of  w;,. 
iiyurious  to  [\u-  iiarty. 

On  a  trial  for  nuinler,  where  it  had  ajipeared  that  the  deceased  imd  jfone  to  fin  1 
the  respondent,  and  armed  liiiuself  w-itli  a  revolver  and  a  knife,  sayinj;  th;,' 
ho  intemled  to  have  a  settlement  witii  the  respondent,  and  that  wlwu  th/ 
re.siiondent  came  np,  the  decini-^ed  spoke  to  him,  and  tiie  two  waliWofl'tr 
gether  and  shortly  afterwards  tlu^  reiiort.  of  a  pistol  was  heard, '  iit  tin  r- 
was  no  evidence  of  tlie  rircnmslance>+  immediately  preceding?  tlic  icillin:, 
after  tho  two  walked  away  together:  It  was  held,  that  the  respomii'iit  1.,;  1 
a  right  to  prove  that  the  deceased  had  said  when  starting  to  tind  him,  tli,;t 
ho  wtuf»  going  to  kill  hinu  and  used  these  words:  "  Wiien  yuii  I'.tarfiii.i 
me,  you  will  hear  that  him  or  me  is  dead."  Such  declarations  are  adiiiis.-il :  ■ 
under  ^he  circumstances,  as  a  part  of  the  irs  ijextw. 

On  a  trial  for  murder,  threats  made  hy  the  deceased  against  the  resi)Oiulei:t, 
which  are  not  admissilil.'  us  part  of  the  ren  fiexta-,  and  which  were  uot  an.;- 
municated  to  tho  resiiondent,  are  iiiadiuissilile  in  his  behalf. 

Confessions  dehherately  made,  ami  precisely  idditiKed,  are  often  most  «iti«fii  • 
tory  evidence;  but  men?  verbal  admissions,  imsupported  by  other  cvidiiK  , 
should  bo  cautiously  weighed,  because  of  their  liability  to  be  misuiuIi'Mi>  .1. 
the  facility  of  fabricating  them,  and  the  ditUculty  of  lUsprovuig  tliem. 

Fkom  tlio  Circuit  Court  of  Blount. 

Tried  before  the  Hon.  "NVii-mam  J.  IIaralsox. 

The  prisoner  in  this  case  was  indicted  in  Se])tenihcr,  ISTO,  for 
the  murder  of  Pickens  Musgrrjve;  pleaded  not  guilty  to  the  in- 
dictment; was  tried  at  the  March  term,  1873,  convicted  of  nun- 
der  in  the  second  degree,  and  sentenced  to  the  peiiiteiitiaiyk 
ten  years.  On  the  trial,  he  reserved  several  excoptiuiis  to  tlie 
rulings  of  the  court,  which  are  thus  stated  in  the  hill  of  excep- 
tions: "The  state  having  given  evidence  tending  to  show  that  at 
a  certain  time,  ahout  the  5th  day  of  January,  1870,  in  saiil  county 
of  Blount,  tlie  deceased  ciuue  to  the  still-house  of  his  father,  E'i- 


f 


BURNS  r.  STATi:. 


325 


xinl  Muti"riivc,  altout  four  (t't'loclc  in  the  evening,  niid  inquired 
If  j],e,lef(.'ii'lunt  wiis  tliere,  or  liad  come  yet;  and  lieinj^  told  that 
'le  liml  not,  itroceodcd  to  load  his  j)lst(d,  and  sharpen  a  knifo 
fjivy  ^  '.vliii'li  111-' ^""^  ''*'  ^^'^'  •*till-housL',  saying  that  he  intended  t«t  have 
;i  settloiiK'iit  with  the  defendant;  that  the  defendant  rode  up 
;ilioiit  this  time,  driving  some  of  hi8  father'^  ho;^-s,  j,'ot  down  from 
1,1,  lii>r.-c,  iiiid  waii  aliout  fahteniuif  him,  when  the  deceased  went 
;iM  to  hi  111,  and  spoke  to  hiiu,  and  they  walked  oil"  to<j;ether;  that 
tlicv  were  111 )sent  some  time,  ^vhen  a  pistol  shot  was  heard;  that 
tlicdefeiuliiiit  came  nj)  to  the  still-house,  in  from  five  to  twenty 
iiiiiinteo  thereafter,  and  called  for  some  persons  there  to  <fo  with 
!iim,  to  help  take  care  of  the  deceased,  whom  he  had  shot;  that 
two  persons  went  with  him  to  the  jdace,  some  four  hundred  yards 
iliitaut,  where  they  found  the  deceased,  wounded,  and  carried 
liim  to  the  still-house,  wlience  he  was  taken  to  his  father's  house, 
vkrehedied  in  a  few  days  from  the  wound;  and  that  the  de- 
Waut,  when  he  came  to  the  still-hoU'C  after  the  shot  was  heard, 
\v;i3  woiuukd  in  the  le^,  as  if  with  a  sharp  knife,  and  had  some 
ici'iitchcs  on  his  throat.  The  defendant,  by  his  attorneys,  asked 
t;ikl  witness,  Henry  ]>rasseal,  who  stated  the  above,  if  the  defend- 
f.iif,  «heu  he  came  to  the  still-house  for  help,  stated  anythin<^ 
iiietluin  what  is  above  set  forth,  to  wit:  "  thiit  he  wanted  them 
tj go  with  him,  to  hel[t  take  cure  of  the  deceased,  whom  he  had 
.4jt;"  The  witness  rei)lied,  that  he  did  say  something  else  at 
the  time.  The  defendant  then  asked  said  witness  to  state  all 
tkt  lie  (defendant)  said  at  that  time.  The  state's  attorney  ob- 
jected to  the  witness  answering  this  (piestion,  and  the  court  sus- 
tained the  objection;  to  which  the  defendant,  by  his  counsel, 
exoeptcd. 

'•During  the  further  progress  of  the  cause,  the  defendant 
i-tlered  to  prove,  by  one  Cassey  Speigle,  who  was  st.aying  at  the 
liuiise  of  ?aid  Edward  Musgrove  in  January,  1870,  where  the 
I'.eceased  alsx*  lived  at  that  time,  that  she  was  ])resent  when  the  de- 
ceased started  to  the  still-house  on  the  evening  he  was  shot;  and 
tliiit  he  told  her,  wdien  starting,  that  he  intended  to  kill  the  de- 
fendant, and  said, '  When  you  hear  from  nie,  you  will  hear  that 
Iiim  or  me  is  dead.'  The  solicitor  for  the  state  objected  to  the 
admission  of  this  evidence,  and  the  court  sustained  the  objection, 
Ijecause  the  same  had  not  been  communicated  to  the  defendant; 
to  which  ruling  the  defendant  excepted. 


"liiil 


iiii 


■ 


326 


AMERICAN  CRIMINAL  REPORTS. 


"  In  the  further  i)rogress  of  the  cause,  the  defendant  offered 
to  prove,  that  when  he  came  to  the  still-house  to  obtain  help  for 
the  deceased,  and  told  the  witness  tliat  he  had  shot  him,  liealjo 
said,  '  and  I  fear  I  liave  killed  him.  I  would  not  have  done  it 
for  the  world,  but  he  was  trying  to  kill  me,  and  I  couldn't  help 
shooting  him.'  To  this  the  solicitor  for  the  state  ol )jecte(l,  and 
the  court  sustained  the  objection,  to  which  the  defendant  ex- 
cepted. 

*'  In  the  further  progress  of  the  cause,  the  defendant  offered  to 
prove  by  Nmcy  Button  and  Taylor  Dutton  that  the  deceased. 
the  day  before  he  was  shot,  came  to  their  house  in  the  niorniiiir. 
on  his  way  to  Blountsville,  and  in  the  night,  on  his  return  liomt, 
and  on  both  occasions  inquired  if  they  had  seen  the  defendant 
pass  that  day,  or  knew  where  he  was,  and  stated  his  intention 
to  kill  him.  The  state  objected  to  the  admission  of  this  evi. 
dence,  and  the  court  sustained  the  ctbjection,  because  the  same 
had  not  been  communicated  to  the  defendant;  to  which  ruliii;: 
the  defendant  excepted. 

"  In  the  further  progress  of  the  cause,  the  defendant  offered 
to  prove  by  one  Calvin  Hudson,  that  on  the  day  before,  or  at 
most  a  very  few  days  before,  the  deceased  was  shot,  he  liad  ? 
conversation  with  him  in  Blountsville,  in  which  the  deceased 
wanted  to  borrow  his  pistol,  and  [said]  that  he  wanted  to  nnku 
a  certain  man  take  back  something  he  had  said;  and  tliat  he 
(witness)  understood  that  the  defendant  was  the  'certain  man' 
mentioned.  To  which  the  solicitor  for  the  state  o])jecteJ,  and 
the  court  sustained  the  objection,  on  the  ground  that  the  same 
had  not  been  communicated  to  the  defendant;  to  which  rulin;.' 
the  defendant  exce]>ted. 

"  In  the  further  progress  of  the  cause,  the  state  having  intm- 
duced  certain  testimony  tending  to  prove  confessions,  or  admis- 
sions of  guilt  made  by  the  defendant,  the  court  was  rcijnestel 
to  charge  the  jury,  in  v.riting,  as  follows:  'Admissions  area 
species  of  evidence  which,  from  the  ease  with  whicli  they  can 'le 
fabricated,  and  the  b'-ibility  to  misiipprehend  what  was  said, 
should  always  be  scrutinized  and  received  with  great  caution  l>v 
the  jury.'  Which  charge  the  court  refused  to  give,  and  the  de- 
fendant excepted. 

"  The  defendant  also  requested  the  court,  in  writing,  to  charge 
the  jury  as  follows!     '  That  although  they  may  be  satisHed,  from 


..'.Il.l.;!'!:!       t^ 


''t,' 


BURNS  V.  STATE. 


32T 


the  evidence,  that  the  previous  general  character  of  the  witness 
Johnson,  for  truth  and  veracity,  was  good;  yet  if  they  believe, 
from  tlie  evidence,  that  said  vltnecs  has  made  ditferent  or  con- 
tradictory stateuaents  of  the  circumstances  attending  the  alleged 
confession,  they  may  look  to  these  contradictory  statements  to 
ascertain  whether  or  not,  and  if  so,  how  much,  credit  should  be 
(riven  to  tlio  testimony.'  The  court  refused  to  give  this  charge, 
and  tlie  defendant  excepted. 

"The  defendant  also  asked  tlie  court  to  give  the  following 
charge,  wliich  was  in  writing:  '  Tiie  defendant's  guilt  must  be 
made  out  by  evidence  of  a  conclusive  nature  and  tendency,  and 
must  exclude  any  reasonable  supposition  of  innocence.'  The 
court  refused  to  give  this  charge,  and  the  defendant  excepted  to 
this  refui^al.'' 

IlaiiiUl,  Palmer  tt  Dickinson,  for  the  prisoner. 

Ben.  Gardner,  Attorney  General,  for  tlie  state. 

Brickkm,,  J.  The  general  rule,  often  announced  by  the  court, 
i£,  that  a  party  to  a  proceeding,  civil  or  criminal,  taking  a  bill 
of  exce])ti()ns,  must  atlirniatively  show  error  to  his  prejudice,  or 
the  proceedings  will  not  be  disturbed.  Et<kridije  v.  lite  State, 
25  Ala.,  30;  Ihithr  v.  The  State,  23  id.,  43.  h\  this  case,  the 
state  having  given  in  evidence  the  declarations  of  the  prisoner 
on  his  return  to  the  still-house  after  the  shooting,  it  was  his 
clear  ri^lit  to  adduce  the  whole  of  what  he  said  at  that  time,  in 
reference  to  the  unfortunate  transaction.  1  Greeid.  Ev.,  §  21S. 
This  rule  has  been  announced  by  this  court  so  often,  ami  it  is 
fo  clearly  expressed  in  tlie  text-books,  that  w^e  are  not  ready  to 
presume  any  court  has  infringed  it.  The  bill  of  exceptions  does 
not  inform  us  what  the  ]n"isoner  said  at  the  sitUie  time,  and  in 
the  same  connection,  which  the  court  tleclined  to  permit  him  to 
give  in  evidence.  Tliougb  it  may  have  been  part  of  the  same 
conversation  of  which  the  state  gave  evidence,  we  cannot  say 
that  it  liiul  any  reference  to  the  killing,  or  to  the  circumstances 
attending  the  killing;  nor  can  we  say  that  its  exclusion  did  not 
Iienefit,  rather  than  ]>rejudice  the  prisoner.  An  exception  to  the 
admission  or  rejection  of  evidence  should  always  disclose  the 
evidence  admitted  or  rejected,  or  a  revising  court  cannot  intel- 
ligibly pass  judgment  on  it. 

2.  The  prisoner  oftered  to  prove  exculpatory  declarations  made 


1 1- 1 


"i    i 


i 


328 


AMERICAN  CRIMINAL  REPORTS. 


by  him  when  ho  returned  to  the  still-house  after  the  sliootini^ 
which  the  court  exchuled.  Tlie  bill  of  exceptions  does  not  in- 
form  us  whether  these  declarations  formed  part  of  the  conversa- 
tion of  which  the  state  gave  evidence,  or  whether  tlioy  were 
made  in  another  and  snbsetjuent  conversation.  Of  course,  we 
cannot  say  that  the  court  erred  in  rejecting  them.  It  may  be 
jn'oper  fur  us  to  repeat  the  ride  by  which  the  court  should  be 
governed  in  determining  the  admissibility  of  this  evidence.  The 
prisoner  cannot  give  in  evidence  his  own  declarations,  unless 
they  form  part  of  the  n-s  gesUn;  but  if  the  state  give  evidence  of 
his  confessions,  declarations,  or  admissions,  it  is  his  right  to  lav 
])cfore  the  jury  all  that  he  said  at  the  time,  referring  to  the  kill- 
ing, and  the  circumstances  attending  it.  It  is  the  jn-ovince  of 
the  jury  to  determine  the  credibility  and  weight  uf  the  declara- 
ration  or  confession.  The  jury  must  weigh  the  whole,  rejecting 
no  part  unless  for  some  sufficient  reason;  but  they  may,  in  the 
exercise  of  their  judgment,  give  more  credence  to  one  part  than 
to  another,  or  may  deny  credence  to  a  ])art  or  to  the  whole. 
WilUams  v.  The  State,  39  Ala.,  532;  Chamlcrs  v.  The  State, 
26  id.,  59;  1  Greenl.  Ev.,  §  218. 

3.  It  appears  from  the  evidence  set  out  in  the  bill  of  excep- 
tions, that  the  killing  was  at  or  near  a  still-house.  That  the  de- 
ceased reached  the  still-house  before  the  prisoner,  and  on  reacli- 
ing  the  house,  inquired  for  the  ])riftoner;  that,  being  informed 
the  prisoner  was  not  there,  he  obtained  a  knife,  and  shiu-peiicd 
it,  and  loaded  his  pistol,  declariiig  that  when  the  prisoner  came, 
'*he  intended  to  have  a  settlement  with  him;"  that  the  prisoner 
rode  up  about  this  time,  and  while  he  was  fastening  his  horse, 
the  deceased  spoke  to  him,  and  they  walked  oil'  together;  that  the 
report  of  a  pistol  was  heard  in  a  short  time,  and  the  ])risuner  re- 
turned to  the  still-house  alone,  having  a  wound  in  his  leg,  ap- 
]>arently  made  by  a  knife,  and  some  scratches  on  his  throat. 
There  was  no  evidence,  so  far  as  disclosed  by  the  bill  of  excep- 
tions, of  the  circumstances  of  the  killing,  or  of  the  conductor 
condition  of  the  parties  at  the  time  of  the  killing. 

The  prisoner  oil'ered  to  jirove  that  the  deceased,  when  startinj,' 
to  the  still-house,  said  that  he  intended  to  kill  the  prisoner,  and 
used  these  words:  "  When  you  hear  from  me,  you  will  hear  that 
him  or  me  is  dead."  The  state  objected  to  the  admission  of  this 
evidence,  and  the  court  sustained  the  objection,  because  it  did 


■'I  ■'-■f'-ifff ~ 


BURNS  V.  STATE. 


329 


not  appear  that  tlicse  declarations  or  threats  had  been  commun- 
icated to  the  prisoner. 

The  sjcneral  rule  is,  that  threats  of  personal  violence  made  by 
tlic  deceased  against  the  prisoner,  and  not  communicated,  arc 
not  adniissiblc  in  evidence,  unless  they  form  part  of  the  res 
0t<n.  Poxodl  V.  The  State,  19  Ala.,  577;  Carroll  v.  The  State, 
23id.,2S;  Dupree  v.  The  State,  33  id.,  380.  It  is  impossible  to 
(letiiie  accurately  the  declarations  which  should  be  treated  as 
parts  of  the  res  gestcc.  The  main  facts  in  this  case  are  the  kill- 
iiii;  and  the  circumstances  attending  it.  Declarations  coinci- 
dent with  these  in  point  of  time,  whether  made  by  the  deceased 
orb}'  the  accused,  would  certainly  be  admissible.  It  is  not  the 
point  of  time  at  which  the  declarations  were  made,  so  much  as 
their  coiniection  with  the  main  fact,  that  determines  the  question 
of  admissibility.  Gotali/  v.  IIu//ij}hries,  36  Ala.,  017.  If  they 
are  cotemporaneous  with  the  main  fact,  connected  with  it,  and 
elucidate  it,  or  the  state  of  the  party's  mind,  when  that  is  ma- 
terial, at  the  time  of  the  happening  of  the  main  fact,  they  are 
admissible.  Their  weight  as  evidence  must  be  determined  by  the 
jury.  Tlieyare  not  admissible  to  i)alliate  or  excuse  a  murder  or 
akilHiig,  shown  by  other  evidence  to  be  felonious.  Tliey  are  ad- 
missible oidy  to  show  the  mental  status  of  the  deceased,  and  his 
motive  in  going  to  the  still-house  aiul  in  inviting  an  interview 
with  the  prisoner.  If  there  is  no  evidence  of  the  facts  attending 
the  killing,  this  evidence  may  enable  the  jury  to  determine  who 
was  the  aggressor,  and  may  properly  generate  a  doubt  of  the 
guilt  of  the  accused.  Cataphell  v.  The  State,  10  111.,  Vi',  People 
v.  Saxj'jins,  37  Cal.,  077.  It  should  have  been  admitted,  and  the 
jury  permitted,  uiuler  proper  instructions,  to  determine  its  value. 
Such  evidence  is  of  little  value,  if  it  is  admissible,  when  the 
prisoner  has  provoked  the  affray,  or  when  it  afhrmatively  appears 
that  the  deceased  was  not  in  a  condition  to  execute  his  threat  or 
was  making  no  effort  to  do  so.   Carroll  v.  The  State,  23  Ala.,  28. 

The  declarations  or  threats  made  by  the  deceased  to  Hudson 
and  others,  were  propcly  rejected.  They  do  not  form  part  of 
the  res  gtsta;,  and  are  not  cotemporaneous  with  it.  The  threats 
made  to  Cassey  Speigle,  as  we  construe  the  bill  of  exceptions, 
were  made  when  the  deceased  was  starting  to  the  still-house,  on 
the  afternoon  of  the  killing,  and  were  admissible  under  the  facts 
recited  in  the  bill  of  exceptions,  on  the  same  reasoning  on  which 


4  ;  i 
J  Mr 


330 


AMERICAN  CRIMINAL  REPORTS. 


the  declaration  of  a  party  leaving  home,  as  to  his  destination  and 
the  objects  he  has  in  view,  are  received.  Pitts  v.  Burrongh  6 
Ala.,  733. 

4.  The  charge  requested,  as  to  the  weight  or  value  of  admis- 
sions or  confessions  as  evidence,  is  abstract,  so  far  as  the  bill  of 
exceptions  discloses.  It  does  not  appear  that  any  admission  or 
confession  of  the  prisoner  was  given  in  evidence,  and  the  court 
might  well  have  refused,  on  this  ground,  to  give  the  charge.  The 
rule  settled  by  this  court  is,  that  admissions  made  by  a  party  to 
a  civil  ])roceeding  (and  confessions  in  a  criminal  case,  as  far  as 
their  weight  as  evidence  is  concerned,  stand  on  the  same  footinf;) 
deliberately  "made  and  precisely  identified,  are  often  most  satis- 
factory evidence;  but  that  evidence  of  mere  verbal  admissions, 
unsupported  by  any  other  evidence,  should  always  be  cautiously 
weighed,  because  of  their  liability  to  be  misunderstood,  the  fa- 
cility of  fabricating  them,  and  the  ditiiculty  of  disproving  them. 
Wittlck  V.  Keiffer,  31  Ala.,  190;  Garrett  v.  Garrett.,  29  id.,  439. 

The  bill  of  exceptions  does  not  disclose  what  was  the  evidence 
of  the  witness  Johnson,  nor  that  there  was  any  evidence  he  had 
made  contradictory  statements,  or  statements  variant  from  the 
evidence  he  gave.  The  charge  asked  was  not  warranted  by  any 
fact  disclosed  in  the  bill  of  exceptions;  and  for  this,  if  for  no 
other  reason,  it  was  properly  refused.  The  other  char^'es  re- 
quested were  so  framed  as  to  have  a  tendency  to  mislead  the 
jury,  and  were  properly  refused.  The  charges  given  were  not 
excepted  to,  and  are  not  subject  to  revision.  For  the  error  we 
havenoticed,  the  judgment  is  reversed,  and  the  cause  remanded. 
The  prisoner  will  remain  in  custody  until  discharged  by  due 
course  of  law. 


IloRUACir  vs.  State. 
(«  Tex.,  242.) 


Homicide  :    Evidence  of  character  of  deceased  —  Practice  —  liiyht  of  pereiiqHorn 
challenge — When  to  be  exercised. 

On  a  trial  for  felonious  hoiniciilo,  whore  the  ilefcnso  is  tliut  the  killing  was  done 
in  self  defense,  it  is  competent  to  prove  the  genenil  cliariicter  of  the  clt'coa-sud 
for  violence,  and  his  iuibit.  of  canying  anns,  where  such  evidence  will  toiul 
to  explain  the  actions  or  conduct  of  the  deceased  at  the  time  of  the  kiliiiijj, 
and  the  mtent  of  tlie  respondent. 


HORBACH  V.  STATE. 


831 


it' 


'  lii 


' ; 


On  a  trial  for  felonious  homicide,  evidence  of  the  general  reputation  of  the  de- 
ceased for  violence,  or  of  liis  habit  of  ciurying  dangerous  weapons,  is  not 
admissible  until  some  acts  or  conduct  on  the  part  of  the  deceased  at  the  time 
of  the  Idlling  have  Ijeen  proved,  wliich  such  evidence  will  tend  to  illustrato 
or  explain. 

Where  there  was  evidence  that  at  the  time  of  the  killing,  the  deceased  grossly 
insulted  the  respondent  a  number  of  times  without  any  provocation,  and 
that  when  respondent  a.«kcd  hijn  what  he  meant,  he  put  Ids  hand  behind 
liim  as  if  to  draw  a  pistol,  when  resixindent  shot  him,  it  was  held  admissible 
to  prove  the  general  chimuit^'r  of  the  deceased  for  violence,  and  that  he  was 
ill  tlie  habit  of  ciurying  weapons. 

Under  the  statute  in  Texius,  sifter  a  juror  has  been  accepted  and  impaneled,  the 
right  of  poremi)torj'  challenge  is  gone. 

KoiiEKTs,  C.  J.  Tlie  defendant  was  indicted  foi*  the  murder  of 
II.  K.  Thomas,  found  guilty  of  murder  in  the  second  degree,  and 
Lis  puiiishment  assessed  at  six  years  in  the  state  penitentiary. 

The  facts  necessary  to  be  mentioned  to  present  the  errors,  on 
the  trial  complained  of,  were,  that  Ilorhach  and  Thomas  were  per- 
fectly friendly  up  to  the  time  of  the  difficulty,  which  l^appened 
ahout  eleven  o'clock  at  night,  in  a  "  sample  room  "  in  the  city  of 
Dallas,  where  and  when  there  were  present  Boyle,  one  of  the 
proprietors,  and  Duckworth,  the  bar-keeper,  both  of  whom  were 
behind  the  counter;  Shock  and  Wilson,  who  were  outside  of  the 
counter,  as  were  also  Ilorbach  and  Thomas,  both  of  whom  were 
somewhat  intoxicated,  and  had  taken,  together  with  others,  two 
drinks  of  spirits  not  long  before  the  difficulty  arose.  Four  of 
them  had  just  played  a  game  of  pool,  in  which  Thomas  had  lost, 
and  treated  the  others.  Upon  asking  his  bill  of  the  bar-keeper, 
he  was  told  that  he  owed  for  two  rounds  of  drinks,  Horbach  be- 
ing then  at  the  front  of  the  store.  Thomas  said  he  owed  no  such 
damned  thing.  The  bar-keeper  said,  "all  right,  Harvey,"  and 
Thomas  paid  for  one  round  of  drinks,  and  said  if  any  one  said  he 
owed  for  twu  rounds,  he  was  a  damned  liar.  The  defendant  then 
came  in  singing  and  dancing,  with  a  watering-pot  in  his  hand, 
and  put  it  on  the  counter,  when  Thomas  asked  him  if  ho 
(Thomas)  owed  for  two  rounds;  and  Ilorbach  said,  "Yes." 
Thomas  said,  "  It  is  a  God  damned  lie,"  and  taking  the  watering- 
pot,  threw  it  down  violently  and  mashed  it.  Up  to  this  point 
there  is  no  material  difterence  in  the  testimony  of  the  witnesses, 
but  as  to  the  balance  there  were  some  differences,  which  are 
attributable,  partly  at  least,  to  two  being  behind  the  counter  and 


1!     i 


iil' 


> 

J,' 

'i^  ! 

332 


AMERICAN  CRIMINAL  RErORTS. 


two  being  in  front  of  the  counter.  That  of  the  two  in  front 
Shock  and  Wilson,  was  most  favorable  to  the  defendant,  ami  was 
in  substance,  that  Thomas  told  Ilorbach  that  "  he  was  a  tlanuied 
lying  son  of  a  bitch,"  when  Shock  stopped  up  and  told  him  that 
he  (Shock)  owed  for  the  drinks.  Thomas  replied,  "  that  is  too 
thin,"  and  told  him  to  go  away;  and  turning  to  the  defoiulant 
told  hint  again,  wlioever  says  that  he  owed  fur  two  rounds  is  a 
damned  lying  son  a  bitch,  at  the  same  time  gesticulatiuf  vio- 
lently  with  his  right  hand,  touching  or  striking  Ilorbach  on  the 
breast.  Ilorbach  said,  "  then  you  don't  owe  it? "  Thomas  again 
said  to  Ilorbach,  "  you  are  a  damned  lying  son  of  a  bitch,"  still 
gesticulating  as  before,  in  a  violent,  angry  manner.  Ilorbach 
said,  "  what  do  you  mean?  "  perhaps  twice.  Thomas  still  repeat- 
ing his  accusations  and  gesticulations,  wlien  finally  stcppiii'^ 
back  his  right  foot,  threw  his  right  liand  behind  hiu.,  jiu.sliiiuc 
back  the  skirt  of  his  coat  (one  of  the  witnesses  says  as  if  to  draw 
a  pistol),  when  instantly  Horbach  presented  his  pistol  with  Lotli 
of  his  hands,  and  firing,  shot  Thomas  in  the  head  and  killed  liini. 
Shock  says  that,  being  behind  Thomas,  he  was  shaking  his  head 
at  Ilorljach;  Wilson  says  that,  during  the  altercation,  ho  wont 
into  the  front  room,  turned  down  some  lights,  came  back,  put 
some  money  in  the  safe,  went  behind  the  bar,  and  was  talking  to 
the  bar-keeper  about  closing  up,  when  the  firing  to(dv  place  at 
the  south  end  of  the  counter,  the  said  witness  being  at  the  north 
ond,  and  the  counter  being  so  high  that  he  could  not  soo  the 
movement  of  the  parties'  hands  in  front  of  it.  Shock  wont  for 
a  doctor.  AV^ilson  left  the  house,  as  did  defendant,  who  was 
arrested  that  night  in  AVilson's  room.  There  was  evidence  that 
Bogle  and  Duckworth  were  more  friendly  to  Thomas  than  to 
Ilorbach.  The  doctor  came  and  fouiul  no  weapons  on  Thomas, 
and  there  was  no  further  evidence  as  to  whether  he  had  weapons 
or  not  when  he  was  shot. 

Thei-e  is  no  intention  here  to  give  the  least  intimation  of  opin- 
ion as  to  the  weiirht  of  this  evidence,  as  establisliiui;  one  conclii- 
sion  or  another  in  reference  to  the  guilt  or  iimocence  of  the  de- 
fendant. It  is  collated  simply  to  show  that  there  was  eviilencc 
tending  to  prove  one  of  two  conclusions  leading  to  ditl'erent  rc- 
sidts,  either  that  Ilorbach  shot  Thomas  from  a  sudden  motive 
of  revenge  fur  an  unprovoked  and  gross  insult,  or  under  the  be- 
lief that  the  gross  insult  was  then  being  followed  up  by  the  act 


^^"gffPr 


•filM 


HORBACH  V.  STATE. 


333 


of  making  a  deadly  assault  upon  him  with  a  weapon,  endanger- 
in''  liis  life.  The  facts  tending  to  the  establishment  of  the  latter 
conclusion  (to  what  extent,  it  is  immaterial  to  consider  now) 
were,  that  Thomas,  having  a  dispute  with  the  bar-keeper  about 
his  liquor  bill,  became  angry,  and  without  any  apparent  cause, 
turned  the  controversy  about  it  from  the  bar-keeper  to  Ilorbach. 
The  bar-keeper,  Shock,  and  Ilorbach,  all  tried  to  pacify  him,  and 
let  him  have  his  own  version  of  the  matter.  Still  he  persisted  in 
fastening  the  controversy  on  Ilorbach,  who  was  not  concerned  in 
it  and  was  not  even  present  when  it  commenced.  Ilorbach 
treated  the  matter  lightly  at  first,  and  when  all  the  means  that 
were  tried  could  not  divert  him  from  making  the  issue  with  Ilor- 
bach, he  commenced  treating  the  matter  seriously,  and  asked 
Thomas  what  he  meant.  Thomas  stepped  back  his  right  foot, 
and  threw  his  hand  behind  him  as  if  to  draw  a  pistol.  It  may 
be  a  significant  fact,  as  tending  to  show  the  known  character  of 
Thomas,  that  the  persons  there,  seeing  the  matter  becoming  se- 
rious, did  not  interfere,  except  that  Shock,  having  been  once 
rudely  repulsed  by  Thomas,  stood  oft*  at  some  distance  shaking 
his  head  at  Ilorbach.  This  may  bear  two  constructions,  cither 
that  they  did  not  think  it  necessary  to  interfere,  or  that  they  did 
not  think  it  consistent  with  their  own  safety  to  interfere  with 
Thomas  any  further  than  had  been  done. 

For  the  purpose  of  adding  still  further  weight  to  the  evidence, 
tending  to  the  conclusion  that  Ilorbach  acted  under  the  belief, 
and  hud  reasonable  grounds,  from  the  words  and  acts  of  Thomas 
then  said  and  done,  to  believe  that  Thomas  was  in  the  act  of 
making  a  deadly  assault  upon  him  with  a  weapon,  the  defend- 
ant, by  his  counsel,  sought  to  prove  l)y  questions  to  witnesses, 
that  Thomas  w«as  in  the  habit  of  carrying  deadly  weapons,  and 
that  Thonuis,  when  intoxicated,  was  a  quarrelsome  and  danger- 
ous num.  The  questions,  being  objected  to,  were  not  allowed  to 
be  answered,  to  which  rulings  of  the  court  defendant  excepted, 
which  appears  in  bills  of  exceptions  in  the  record. 

The  question  is,  AVas  such  evidence  admissible  for  such  a  pur- 
pose as  an  element  of  detense? 

"Evidence,  in  legal  acceptation,  includes  all  the  means  by 
which  an  alleged  matter  of  fact,  the  truth  of  which  is  submitted 
to  investigation,  is  established  or  disproved. 

"By  competent  evidence  is  meant  that  which  the  very  nature 


■''! 

Ill 

1 

:    '■    \ 

■- 

■  1 

I      1 , 

,  .'  ■ 

■ 

mmm 


if  n 

11  (i'  -^ 


ip5 


ill}! 


'ii  r^aar^ 


H- 


ii 


331 


AMERICAN  CRIMINAL  REPORTS. 


of  the  thing  to  he  proved  requires  as  the  fit  and  appropriate 
proof  in  the  particular  case." 

The  thing  souglit  to  be  proved  in  this  case  is,  tliat  Ilorbach 
had  reasonable  grounds  to  believe,  and  did  believe,  that  Tlioinas 
then  intended  and  was  in  the  act  of  then  attempting  to  kill  him, 
by  the  use  of  a  weapon.  Now,  supposing  it  to  be  proved  that 
Thomas,  being  enraged  and  pressing  the  unprovoked  quarrel  up- 
on Ilorbach  until  it  became  serious,  and  had  arrived  at  a  point 
where  Thomas  would  either  liave  to  recede  or  follow  it  up  witli 
increased  malignity,  and  just  at  that  juncture  he  steps  back  and 
throws  his  right  hand  behind  him,  what  other  facts  would  be 
required  as  peculiarly  fit  and  proper  to  be  known  by  llurbach  to 
induce  that  reasonable  belief?  Certainly  the  most  lit  and  appro- 
priate additional  facts  that  he  could  possibly  know,  teiuling  to 
prove  such  reasonable  belief,  would  be,  that  Thomas  had  a  pistul 
on  his  person  back  where  he  put  his  hand,  and  that  he  was  a 
man  that  would  use  it  when  mad  and  intoxicated,  and  would  not 
likely  back  down  from  a  difficulty  that  he  had  himself  provoked. 
If  Tliomas  was  in  the  habit  of  carrying  a  pistol  where  lie  put  Lis 
hand,  it  was  not  improbable  that  his  friend  Ilorbach,  as  well  as 
others,  knew  it,  and  might  infer  from  the  motion  of  his  hand 
the  intention  to  draw  it;  and  if  his  general  character  was  that  of 
a  dangerous  man  when  aroused  with  anger  and  excited  with 
drink,  Ilorbach  might  infer  that  Thomas  intended  to  use  the 
pistol  on  him  when  drawn.  On  the  other  hand,  if  Ilorbach 
knew  that  Thomas'  general  character  was  that  of  a  (juarrelsonie 
man,  with  no  force  of  character,  not  vicious  and  destructive  in 
his  nature,  not  likely  to  use  weapons  if  he  had  them,  and  not  in 
the  habit  of  carrying  them,  then  the  inference  iniglit  not  be 
reasonable  from  his  conduct  that  he  intended  then  to  draw  and 
use  a  pistol. 

Thus  is  it  shown  that  these  very  facts,  Tliomas'  character  for 
violence  and  habit  of  carrying  arms,  with  Ilorbach's  knowledge 
of  them,  might  determine  his  guilt  or  innocence  in  acting  as 
promptly  as  he  did.  His  intoxication.  Ids  anger,  his  persistent- 
ly pressing  the  difficulty  on  Ilorbach  without  cause,  his  violent 
character,  and  his  habit  of  carrying  weapons,  woukl  all  be  ap- 
propriate and  fit  facts,  if  they  existed,  to  throw  light  upon  and 
give  significance  to  his  movement  in  stepping  back  and  throw- 
ing back  his  hand.    Taken  separately  and  in  the  abstract,  they 


^^Ifp 


!|! 


HORBACH  V.  STATE, 


885 


may  be  meaningless,  indiiferent  and  immaterial,  but  taken  to- 
gether, they  may  be  pregnant  with  meaning,  as  shown  by  the 
conduct  of   tlie  two   witnesses,  Wilson  and   Shock,   who  saw 
Thomas'  motion  of  his  body  and  of  his  hand.     A  man's  char- 
acter fur  violence,  dej^endent  upon  his  irascible  temper,  over- 
bearing disposition,  and  reckless  disregard  of  human  life,  is  as 
much  a  part  of  himself  as  his  judgment  ajid  discretion,  his  sight 
or  hearing,  his  strength,  his  size,  his  activity,  or  his  age,  any 
one  of  which  may  become  a  material  fact  to  give  a  correct  under- 
standing of  his  conduct  and  the  intention  with  which  an  act  is 
done  by  him,  and  are  therefore  part  of  the  res  gcstw  when  perti- 
nent to  the  act  sought  to  be  explained.     Their  office  in  evidence 
is  adjective,  as  auxiliary  to  a  substantive  fact  to  which  they  are 
pertinent,  and  without  which  they  are  irrelevant  and  immate- 
rial.   They  are  helps  to  the  understanding  in  construing  human 
conduct.    The  mind  cannot  reject  or  disregard  them.     They, 
and  all  like  helj>s,  ever  have  been,  and  ever  will  be,  elements  in 
the  formation  of  belief  as  to  what  a  man  designs  by  an  act  to  which 
they  are  pertinent.     Practically  we  know  that  men  generally, 
who  are  assailed   with  violence,  act  in  defending  themselves 
with  promptness  and  force  in  projwrtion  to  the  violent  and 
desperate  character  of  their  assailant.     It  behooves  them  so  to 
do  for  their  own  safety,  l)ecause  it  is  known  that  such  men 
who  usually  fight  only  with  weapons,  and  usually  have  them 
ready  for  use,  are  not  to  be  trusted  to  get  an  advantage  in  the 
combat. 

If,  then,  the  character  of  the  assailant  in  any  case  has  helped 
to  form  a  reasonable  belief  in  the  mind  of  the  assailed  that  his 
life  was  then  in  danger,  when  the  acts  alone  would  fail  to  do  it, 
tlie  jury  should  in  some  way  be  informed  of  the  character  of  the 
assailant,  as  well  as  of  his  acts,  to  enable  them  to  understand  that 
the  belief  was  a  reasonable  one.  Otherwise  he  might  act  in  his 
defense  on  such  reasonable  belief,  and  the  jury,  not  helped  by  a 
knowledge  of  the  assailant's  character  to  understand  the  import 
of  his  acts,  of  which  they  were  informed,  would  find  him  guilty 
of  murder,  because  of  his  having  acted  without  reasonable 
grounds  for  believing  that  his  life  was  then  in  danger,  when  in 
fact  he  had  such  reasonable  grounds  of  belief,  did  believe  it,  and 
acted  on  such  belief. 
This  being  sometimes  an  important  fact,  necessary  to  be  known 


!  'I 

'I 

>  I 


il 


336 


AMERICAN  CRIMINAL  REPORTS. 


l»y  a  jury  to  enable  tliem  to  come  to  a  proper  conclusion  as  totlie 
state  of  mind  of  the  accused  just  at  the  time  when  he  killed  tlie 
deceased,  how  and  untler  what  circumstances  is  it  admissible  in 
evidence?  It  is  laid  down  as  the  rule  at  common  law,  as  prac- 
ticed iji  England  and  most  of  the  older  states  of  the  American 
Union,  that  it  must  be  made  to  appear,  if  at  all,  in  the  transac- 
tions immediateh*  connected  with  the  killing  as  part  of  the  ?v.s 
(jent(v^  as  it  is  termed,  and  to  be  deduced  therefrom  rather  than 
to  be  ]>rovcd  as  a  distinct  fact. 

Iti  an  old  settled  country,  where  there  is  little  change  of  popu- 
lation,  this  fact  would  generally  bo  known  to  a  jury  without  be- 
ing proved  as  a  distinct  fact,  whereas  in  newly  settled  cunntries 
it  niight  not  be.  Formerly  it  was  the  rule  to  get  jurors  from 
the  vicinage  who  knew  the  parties  and  the  transaction.  Xow, 
the  very  opposite  is  the  rule.  There  are  various  other  reasons 
arising  out  of  the  state  of  society  and  habits  of  the  people  in  dif- 
ferent countries  and  at  different  periods,  which  would  make  it 
important  that  this  fact,  when  pertinent,  should  be  made  to  ap. 
pear  as  a  distinct  fact,  as  explanatory  of  the  acts  and  intentions 
of  the  parties  concerned,  in  order  to  arrive  at  the  truth.  In  an 
early  case  in  North  Carolina,  it  was  said,  in  speaking  of  tlieconi- 
mon  law  (in  a  case  where  it  was  held  that  the  proof  of  tlic  cliar- 
actei  of  the  deceased  for  violence  was  admissible  as  a  distinct 
fact),  that  it  is  a  "  system  which  adapts  itself  to  the  habits,  in- 
stitutions and  actual  conditions  of  citizens,  and  which  is  not  the 
result  of  the  wisdom  of  any  one  man  in  any  one  age,  but  of  tlie 
wisdom  and  experience  of  numy  ages  of  wise  and  discreet  men." 
State  V.  Tach'tt,  1  Hawk's  L.  &  Ch.  (X.  C),  217. 

In  an  early  case  in  Alabama,  evidence  of  the  general  charac- 
ter of  the  deceased  was  held  to  be  admissible.  Chief  Justice 
Lipscomb  (who  so  long  adorned  our  court  also  as  associate  jns- 
tice),  in  delivaring  the  opinion,  said  in  very  strong  language, 
"If  the  deceased  Avas  known  to  be  quick  and  deadly  in  his  re- 
venge of  insults,  that  he  was  ready  to  raise  a  deadly  weapon  on 
every  slight  provocation;  or,  in  the  language  of  counsel,  his  'gar- 
ments were  stained  with  many  murders,'  when  the  slayer  had  been 
menaced  by  such  an  one,  he  would  find  some  excuse  in  one  of 
the  strongest  impulses  of  our  nature  in  anticipating  the  purposes 
of  his  antagonist.  The  language  of  the  law  in  such  a  case  would 
be,  obey  that  impulse  to  self-preservation  even  at  the  hazard  of 


IIOUBACII  I'.  STATE. 


83T 


tlie  life  of  yonr  mlvcrsnry."  Quesenlerry  v.  The  S/tde,  3  Stew. 
aiulPt»i't.,  Ala.,  JMo-C.  In  the  sriiio  ciwe  it  is  said  tlmt,  "  tlicro 
cftnl)eii'»<l«'"l^'t  '»"t  that  when  thu  killinjj;  has  bt'cii  under  such 
circiinistiim'os  as  to  croatu  a  donht  as  ti»  tho  character  of  the  of- 
fense c-munitted,  that  the  general  cliaracter  of  the  accused  may 
.iometiiiiL':*  iiUord  a  cine  l»y  which  the  devious  M'ays  hy  which  hu- 
man actiipn  !;<  influenced  may  be  threaded  and  the  truth  ol). 
tallied."  These  views  of  the  law  are  quoted  and  adopted  with 
inmieruiis  reas(»ns  for  their  correctness  by  Justice  Luiui»kiii  iu 
t!ie  ease  of  Kicuer  v.  Tim  State,  18  (ia.,  L'21;  Jlan/oc  v.  Tha 
Sinkdf  ^ji'>i'il'"f,  5  id.,  90.  '♦ 

hi  tlie  case  of  tlie  Stdti'  of  Jf/^^nt/r/  v.  Kecue,  50  Mo.,  35S, 
tlie  court  say,  "where  homicide  is  committed  under  such  cir- 
ciimstaiices,  that  it  is  doubtful  whetlier  the  act  was  commit- 
ti'tl  iimlit'iously,  or  from  a  well  grounded  a])])rehension  of  dan- 
i.'er.  it  is  very  i)roi>er  that  the  jury  sliould  consider  the  fact  that 
the  deceased  was  turbulent,  violent,  and  desperate.  In  determin- 
iiic  whether  the  accused  Iiad  reasonable  cause  to  ai>prehend  great 
personal  injury  to  himself."  This  was  said  in  reversing  a  con- 
viction for  murder,  because  the  court  had  excluded  evidence  of- 
fered that  the  deceased  was  a  (juarrelsonie,  dangerous,  and  des- 
perate man.  and  in  the  habit  of  carrying  weapons,  as  was  done 
in  tliis  case.     See  also  T/te  'State  v.  JficL'x,  '11  Mo.,  51)0. 

The  same  doctrine  was  announced  in  the  state  of  ^linnosota 
in  tlie  case  of  The  State  v.  J)anij>/iei/,  4  ]\Iinn.,  440,  and  also  in 
tlie  State  of  California,  10  Cal.,  3i»i>,  in  the  case  of  IVw  l\<>j)lo 
('.  Jltimn/. 

In  tlie  case  above  (pioted  from  ^Minnesota,  it  is  said:  ''The 
diiiracter  of  the  deceased  per  se  can  never  be  material  in  the  trial 
(if  a  party  for  killing,  because  it  is  as  great  an  ollbnse  to  kill  a 
liiul  man  as  it  is  to  kill  a  good  man,  or  to  kill  a  (piarrelsome  and 
linital  mail  as  it  is  to  kill  a  mild  and  inoll'enslve  man. 

The  principle  npon  which  this  testimony  is  alone  admitted 
(irises  from  some  peculiar  condition  in  which  the  facts  of  the 
lullinjf  leave  the  crime.  If  the  facts  as  established  free  the  case 
from  uncertainty  and  doubt,  and  leave  the  killing  an  act  of  pre- 
meditated design  on  the  part  of  the  defendant,  the  (quarrelsome 
character  of  the  deceased  can  in  no  manner  change  the  nature  of 
the  offense;  but  if  circumstances  surround  the  transaction  which 
leave  the  intention  of  the  defendant  in  committing  the  crime 
Vol.  I.  — 22 


-'1,  IP' 

I 


i 

'■ 

i 

1 

i 

: 

'  f 

Iff 


338 


AMERICAN  CRIMINAL  RKPORTS. 


<l()\il)tfiil,  or  evenly  h.alaiipcd,  or  in  any  manner  indientc  provo- 
cation on  tlio  part  <tf  tlie  deceased,  testimony  of  tlie  (|UtuTels(iiiio. 
cliaraeter  of  the  deeeased  would  then  become  sntHcicntly  part  of 
the  /'rs  (jrKfiv  to  he  admitted  to  explain  or  throw  lii,dit  upon  the 
matter.     St(it>'  v.  Diiinjtlioj,  4  iMinn.,  4-ir)-(l. 

It  may  he  dedneed  from  these  authorities  that  the  |i,fi'iieriil  diar. 
acter  of  the  deceased  for  violence  may  he  jmived  wlmn  it  will 
gerve  to  explain  the  actions  of  the  (lecea^ed  at  the  time  of  tlie 
hilling-;  that  the  actions  which  it  wonhl  serve  to  explain  iniijt 
lirst  he  proved,  hefore  it  would  he  admissihle  as  evideiia";  tluit 
if  no  such  acts  were  i>roved  as  it  woidd  serve  to  expiain.  itsro- 
jection,  when  oil'ered  in  evidence,  would  not  In;  crmr;  niiil 
that,  it'  r;  jected  when  a  proper  predicate  has  heen  estahlislied  for 
its  admission,  it  is  held  error.  See  Irvlii  v.  The  Stofi,  deeitleil 
this  term.  This  results  in  what  has  heen  ])roviously  attempted 
to  he  develo])ed,  that  the  i^eneral  character  of  the  acciisud  fdrvi- 
olence  should  he  allowed  to  he  proved;  not  as  a  substantive  fact, 
in  whole  or  in  part  abstractly  constituting,'  a  defense,  hat  as  mix 
iliary  to,  and  exi)lanatory  of,  some  fact  or  facts  ]»roved  to  have 
<iecnrre<l  at,  and  in  connectioji  witli  the  killing-,  which  teiultn 
establisli  a  defense  wlien  thereby  aided  by  furnisliin;^'  rciisoimlilu 
grounds  for  the  belief  on  the  part  of  the  slayer  that  he  is  then  in 
immediate  and  imminent  danger  of  the  his-  of  his  life  from  ' 
attack  of  his  assailant.  It  is  observable  in  most  of  t 
that  it  is  said  that  the  evidence  of  character  for  \  is  ik- 

missil)le  in  a  doubtful  case.  It  can  hardly  be  n  i  liy  t]ii>. 
that  it  is  admissible  '"dy  in  a  doubtful  case  of  guilt;  i-rift' 
is  doubtful,  there  is  no  need  of  ]>roof  of  character  or  aiiytli...' 
else  to  help  out  the  defense.  1  AVhart.  Crim.  haw,  sec.  ^)^^.  The 
explanation,  it  is  subiiiitted,  is  that  the  person  killing  is  pre- 
sumed to  have  committed  murder  by  tlie  act  of  killing,  and  in 
arraying  the  facts  to  establish  that  he  acted  in  self  defense,  if  an 
act  of  the  deeeased  at  the  time  of  the  killing  is  of  doubtful  im- 
port, or  is  otherwise  of  a  character  that  it  would  be  exphiiueil. 
and  construed  more  favorably  for  the  accused  by  adding  to  it  the 
pn-oof  of  character  of  the  deceased  for  violence,  thcji  such  piwf 
is  admissible.     "Whart.  Crim.  Law,  sec.  O-il,  and  cases  cited. 

The  same  rule  would  ap])ly  to  the  proof  of  the  deceased's 
habit  of  carrying  arms  when  pertinent.     Id. 

It  would  be  easy  to  cite  authorities  opposed  to  the  admission 


IIOTUJACII  v.  STATE. 


339 


of  such  proof  upon  any  cciiditioii  or  uiulcr  iiny  circmnstauces 
113  part  of  ii  (lefuiise.  ',1  (Jreuiil.,  sec.  L'T,  and  note;  1  "VVhart. 
Criiii.  L.,  Hi'C.  (!41,  and  note. 

Our  Criminal  Code  provides  for  the  admission  of  the  proof  of 
tlie  "t'lii'ral  character  of  tlie  (U>ceas(Ml,  as  a  violent  or  danj^^erons 
man,  wla'i\  it  has  been  ])roved  tliat  he  liad  pr(!viously  made 
tliroatii  aj;ainst  tlie  life  of  the  defendant,  which  tlireats  are  de- 
flaretl  to  he  adnussihle,  but  not  to  he  regarded  as  ailordinj^  a  jnst- 
Hicati(»n  for  the  otlense,  unless  it  ho  shown  that  at  the  time  of 
tlielioniicide  the  person  killed,  by  some  act  (h)ne,  manifested  an 
iiiti'iifidii   to  execute  the  threat  so  made."     Taschal's  Oil?.,  art. 

I'lilO. 

lltTC  the  principal  object  is  to  provitle  for  the  admission  of 
tlireat:;,  and  incidentally  thereto  is  jiermitted  the  proof  of  tho 
viok'nt  cliaracter  of  the  deceased,  to  i!;ive  force  to  them,  and  both 
to:,'L'tlu.'r,  when  proved,  serve  oidy  t(»  ex]>lain  the  object  of  an  act 
(lone  hy  the  deceased  at  the  time  of  the  killing. 

The  main  object  of  this  provision  of  the  code  was  to  settle  a 
loii^'  continued  controversy  in  the  courts  of  this  state  as  to 
wlieilior  previous  threats  should  be  aflmitted  at  all,  aiul  if  admit- 
ted, what  their  force  and  effect  should  be;  and  whether  or  not 
nprc'licatc  shoidd  bo  first  established  for  their  admission,  by 
r'ne  pronf  of  some  act  of  the  deceased  which  they  would  give 
iioiiit  to  and  explain. 

This  alHrniiitive  provision  for  the  admission  of  the  proof  of 
the  character  of  the  deceased,  as  a  dependent  incident  to  threats 
tliat  have  been  admitted  to  be  ]>roved,  should  not  bo  held  to  op- 
™U'  as  an  ONclusion  of  the  ])roof  of  character  in  any  and  all 
other  install  ^  wherein  it  might  be  equally  ai)plicable  and  per- 
tinent. 

hi  pnividing  for  the  admission  of  previous  threats,  it  simply 
insured  also  the  admission  of  that  which  was  neces.sary  to  give 
them  their  roper  weight  and  force,  without  prescribing  any- 
thing either  for  or  against  the  admission  of  the  proof  of  the  vio- 
lent character  of  the  deceased,  in  aid  of  any  other  fact  besides 
threats. 

This  provision  of  tlie  code,  it  is  believed,  is  a  reenactment  of 
the  rules  relating  to  threats,  as  adoj)te<l  and  practiced  as  part  of 
the  common  law  in  this  state  before  the  adoption  of  the  Penal 
Code.    Zander  v.  The  State,  12  Tex.,  474,  484. 


310 


AMP]PJCAN  CRIMINAL  REPORTS. 


If  our  laws  sanction  the  proof  of  the  violent  character  of  the 
ck'ceat-ed  in  aid  of  threatening  word^,  it  is  difficult  to  s^ee  Avhy  it 
blunili!  not  be  C(|na]lj  allowed  to  he  proved  in  aid  and  e.xiilaiia. 
tion  of  the  threatening  acts  done  by  the  deceased  at  the  time  of 
the  killing. 

It  ifi  .-scarcely  necessary  to  go  into  an  e.\i)lanation  of  the  con- 
dition of  things  in  this  country,  which  imperatively  re.piires  the 
admission  uf  the  proof  of  the  character  of  the  deceased  fur  viu- 
lence,  in  order  to  attain  the  ends  of  justice  in  the  administratiijii 
of  the  criminal  law.  It  is  well  and  generally  knuwu  tlmt  tlioro 
are  some  violent  and  dangerous  men  in  this  country,  who  are  in 
the  habit  of  carrying  pistols  belted  behind  them  and  in  their 
pockets,  who  never  thiidc  of  fighting  in  any  other  way  tliau  witli 
deadly  weapons,  who  are  expert  in  using  them,  and  who.  espe- 
cially when  intoxicated,  bring  on  and  i)ress  to  the  extreme  of 
outrage  their  deadly  rencounters  for  causes  and  pruvocations 
that  would  be  regarded  as  utterly  trivial  by  peaceal)le  men,  and 
that  if  one  of  such  persons,  while  engaged  in  an  angry  alterc;i- 
tion,  should  suddenly  step  back  and  rapidly  throw  his  hand  ho- 
hind  him,  it  might  readily  be  understood  by  those  who  saw  it  to 
mean,  that  he  was  in  the  act  of  drawing  a  })istol  to  use  it.  Tiie 
same  act  by  one  of  the  great  mass  of  our  peaceabh;  citizens  whit 
are  not  in  the  the  hal)it  of  carrvini;  weaiions  would  suiTirc-t  no 
such  thought,  and  in  such  case,  the  pistol  would  have  to  be  drawn 
and  exhibited  before  any  such  thing  would  b^-  conceived,  iiiile?; 
there  had  been  some  very  extraordinary  provocation. 

This  state  of  thini^s  here  is  a  substantial  realitv,  well  known 
and  ostensible  to  the  percejition  of  every  one  at  all  familiar  with 
the  sul)ject,  and  men  act  upon  it.  and  are  compelled  to  :\  t  upon 
it,  in  defendiuiC  themselves  from  deadlv  assaults. 

It  is  true,  tiie  law  reipiires  a  party  killing  to  act  umler  the  re- 
sponsibility to  himself  of  acting  soon  enough  to  saw  himself 
from  loss  of  life  or  from  serious  btxlily  injur\,  sucli  as  nr.ivhom 
on  the  oneliand,and  on  the  other,  the  risk  t)f  exercising  lirmiie-.: 
and  discretion  to  wait  long  enough  until  some  act  is  done  l)y  the 
deceased,  at  the  time  of  the  killing,  by  which  the  jury  tryingthe 
case  will  l)e  satisiied,  considering  all  vhe  .-urrounilnig  circum- 
stances and  the  parties  concerneil,  that  the  defendant  had  reason- 
able grounds  to  believe,  and  did  then  believe,  that  he  was  then 
in  imminent   and   i!n])ending  danger   of    being    murdered  or 


IIOllBACII  V.  STATE. 


311 


i  ■■!'' 


miiimetl  I'V  I'i*  assailant.  Paselial's  Dig.,  art.  2220,  Ami,  al- 
tliiiii"'li  the  attack  may  l)o  unlawful  and  violent,  if  the  act  dono 
liv  tlie  deceased  indicated  a  "  less  de<;ree  of  ])ersonal  injury  than 
killiii"  and  inaiiuin<,',"  then,  before  the  killing  can  be  fully  just- 
itieil  nr  excused,  it  must  be  shown  that  "  all  other  means  were 
reported  to  for  the  [irevention  (tf  the  injury,  and  the  killing  must 
take  pliice  wlnle  the  person  killed  is  in  the  very  act  of  making 
sueli  unlawful  and  violent  attack."'  I'aschars  ])ig.,  ,irt.  222S, 
This  distinction  and  ditlerence  in  the  rule  as  made  by  our  code, 
ilepeudiiig  u])on  the  degree  of  injury  intended  by  the  deceased 
as  iiiaiiifested  by  his  acts,  is  very  important,  practically  to  be  ob- 
served. 

It  iiiav  avoid  repetition  by  noticing  here  that  this  distinction 
was  nut  iK'operly  (disorved  in.  the  otherwise  very  excellent  charge 
„f  the  court  below,  which  is  as  follows:  "The  defendant  nuiy 
;ilso  justify  himxdf  in  the  killing  by  evidence  showing:  1st, 
tliat  tlie  deceased  made  an  unlawful  and  vl(dent  attack ui»on  him; 
:';].  that  the  attack  so  made  was  of  such  a  nature  as  to  have  pro- 
ihiced  ill  the  niMid  of  this  defendant  a  reasonable  expectation  or 
feai"  of  death  or  sjme  serious  bodily  injury;  .'>d,  that  this  defend- 
ant res^rtod  to  ;'I1  other  means  to  prevent  the  injur}*;  Ith,  that 
deceased  was  killed  while  in  the  verv  act  of  makiui;  such  unlaw- 
fill  and  violent  attack.  And  unless  all  four  of  these  proi)osition3 
affinuatii'ely  appear  in  evidence,  the  defendant  cannot  be  justi- 
ikd  (.111  the  ground  of  an  unlawful  and  violent  attack  upon  his 
jn'i'son." 

The  secoml  proposition  aliove  (pu)tcd  is  not  contained  in  the  ar- 
ticle of  the  code  to  which  the  other  three  relate  (art.  2228,  Pas- 
elial's  DigV  l>y  this  article,  222S,  it  is  intended  to  jtrovide  the 
the  rule  that  where  any  other  unlawful  and  violent  attack  is  made 
th,iii  oiie  ill  which  the  acts  of  the  deceased  manifest  the  intention 
to  murder  or  maim  (or  to  commit  rape,  robbery,  arson,  or  theft 
at  iiiulit),  defendant  is  re(iuired  to  resort  to  all  other  means  be- 
Kire  killing  his  assailant  for  the  preventioii  of  the  injury,  because 
ill  sneli  an  attat.k,  it  is  presumed  that  there  may  be  time  and  op- 
piirtunity  to  resort  to  other  means.  Hut,  as  provided  for  uiuler 
the  preceding  article,  222<>!  where,  at  the  time  of  the  killing, 
"Seme  act  has  been  done  by  the  deceased  showing  evidently  an  in- 
tent to  CDinmit  such  oU'ense "  (murder  or  nuumiug),  then  and 
there,  in  that  event,  the  party  thus  attacked  need  not  resort  to 


h  r.  ■ 

,1      ■    i 

!"^^ 

ri'|l#' 


AMERICAN  CRIMINAL  REPORTS. 


Citlici"  means  before  killiiig  his  assailant,  bccaiisc  it  is  prosiiincil 
in  sucli  a  case  that  the  party's  safety  dej)eiuls  upon  hir<  ])roiu])t 
fiction  in  killing  his  adversary.  Thus,  when  an  unlawful  and 
violent  assault  is  coniinittotl,  the  degree  and  character  t)t'  iiijiin- 
intended  by  the  assailant,  as  then  indicated  by  his  acts  then  done, 
is  made  the  test  of  whether  the  party  attached  may  at  once  kill 
his  assailant,  or  must  resort  to  all  other  means  for  the  ])reventioii 
of  the  injui'y  before  killing  him.  This  confusion  from  blemliii" 
the  two  rules  might  have  been  obviated  by  giving  the  3il  ehui^'e 
asked  by  defendant's  counsel,  which  was  refused  by  the  court 
only  upon  the  ground  that  it  was  deemed  to  have  been  "  suli- 
etantially  given." 

To  return  to  the  evidence  excluded,  it  is  proper  to  notito,  ou 
account  of  the  intimate  relations  l)et\veen  threats  and  the  general 
character  of  the  deceased,  that  by  our  code  threats  are  adniis?ililc 
as  independent  evidence,  without  lirst  having  estalillsheil  a  pivd- 
ioate  for  their  admission  by  the  ])roof  of  acts  done  at  the  time  of 
the  killing,  to  which  they  might  give  additional  force,  siibjectti 
liaving  their  effect  as  evidence  subse(|uently  explained  uwiiy  iiml 
destroyed  by  Liie  (';uu-ge  of  the  court  in  the  absence  of  evidence 
tending  to  prove  such  acts. 

In  the  case  of  the  proof  of  general  character  of  the  deceascil, 
there  must  be  a  ]tredicate  established  by  evidence  already  !^u!l• 
initted,  tending  to  prove  threats  of  the  deceased,  or  some  act 
done  by  him  at  the  time  of  the  killing,  which  it  would  aid  ur 
give  force  to,  as  heretofore  explained;  and  when  admitted,  it 
Avould  be  proper  and  not  charging  on  the  weight  of  evidence,  for 
the  court  to  exjdain  to  the  jury  the  (d»ject  of  its  admission  iii 
auxiliary  and  exjdanatory  of  the  threats  or  acts  to  whieh  it  \va> 
])ertinent,  and  to  be  not  of  itself  independent  evidence  of  a  de- 
fense. 

The  evidence  exhibiting  the  acts  of  the  deceased  at  the  time 
of  the  killing  constituted  a  })redicate  for  the  admission  of  the 
proof  of  the  general  character  of  the  deceased  as  a  violent  and 
dangerous  man,  and  tha'  .lO  was  in  the  habit  of  carrying  weaji- 
C)ns,  and  upon  that  ground,  such  proof  should  have  been  ad- 
mitted. » 

There  is  also  a  bill  of  exceptions  in  the  record,  by  the  defend- 
ant as  to  the  ruling  of  the  court  in  the  selection  of  the  juiy, 
which  recites  the  facts  as  follows: 


HORBACH  V.  STATE. 


3i3 


'     T  1.1 

■ir*  if 

»     ■ 

"After  tlio  state  had  passed  severally  upon  Mitcli.  Gray,  11. 
II.  Lindsoy  and  James  II.  Davis,  and  Lefure  the  jury  had  fully 
been  miulo  up,  the  court  ])erniitted  the  district  attorney  to  clial- 
leiiiTC  cacli  of  said  jurors  pereiii})torily,  and  had  them  stand 
aside,  to  which  defeiulant  e.\ce])ts."  The  ruling  of  the  court  was, 
that  the  state  or  defendant  could  challenge  any  juror,  although 
accepted,  when  a  new  juror  was  chosen,  initil  their  challenges 
rospecti\.ly  were  exhausted. 

Upon  the  trial  of  a  capital  offense,  a  special  venire  facias  is 
ifsued  for  ])ersons,  not  less  than  thirty-six  nor  more  than  sixty, 
fur  the  purpose  of  forming  a  jury.  ras"h.  Dig.,  art.  30 10,  and. 
yiowing. 

It  is  further  provided  that,  '•  in  forming  the  jury,  the  names 
(if  the  persons  sumnu)ned  shall  he  called  in  the  order  they  stand 
upon  tlie  list,  and,  if  present,  shall  he  tried  as  to  their  qualifica- 
tions, iuul  unless  challenged,  shall  he  impaneled."  I'asch.  Dig., 
art.  o^}'2-i:.  J>y  this  we  understand  that  they  are  to  he  challenged, 
cither  for  cause  or  perem])torily,  severally,  as  each  one  is  deter- 
mined hy  the  court  to  he  a  ([ualified  juror,  which  is  to  he  con- 
tinued, one  hy  one,  until  the  jury  is  fully  formed  to  the  numher 
of  twelve.  We  know  of  no  law  uv  estahlished  practice  under  the 
law,  which  sanctions  the  peremi)tory  challenge  of  a  juror  hy 
I'itlier  i>arty  when  thus  placed  on  the  jury,  whether  it  is  full  or 
r.ot.  There  may  l)e  discretion  in  the  court  for  excusing  or  stand- 
ing aside  a  juror  after  he  is  thus  selected,  for  some  good  cause 
sliowii  at  the  time  why  the  juror  cannot  or  ought  not  to  servo 
iin  that  jury.  We  do  not  think,  therefore,  that  the  mode  of  se- 
iicting  the  jury  that  was  adopted  in  this  case  is  warranted  hy 
any  law  of  this  state. 

for  the  several  errors  that  have  heen  jKiinted  out,  and  particu- 
larly for  that  of  excluding  the  evidence  otl'ered  to  prove  the  gen- 
eral character  of  the  deceased  for  violence,  and  that  he  was  in 
the  hahit  of  carrying  weapons,  the  judgment  must  he  reversed, 
and  the  cause  renumded.  Jitcc/'ned  and  rtiaandcd. 


XoTE.— On  tiio  triiil  of  an  imlietnient  for  lioiniciilc,  L-vidonco  offered  generally  to 
prove  that  the  direased  w;is  well  known,  and  understood  to  be  a  iiuarrel.-Duie,  riot- 
ous and  siiviii;;,'  man,  is  inadmissilih'.  If  tlie  oiler  lie  {general,  and  no!  eonueeted 
with  tlie  defendant's  .>-7((/(f.s'  at  tlie  time,  the  tistinidiiy  nnist  neeessanly  be  ex- 
dmk'il,  for  it  would  be  a  barbarous  tliiny:  to  allow  A.  to  give  as  a  reason  for  liis 
killing  B.,  that  B.'tj  ilisposition  was  savaye  and  riotous.     AViien,  however,  it  is 


Hi 

T 

•y" ?*) 

:||i 

<• 

'  1' ' » 

!'        * 

J  'y 

:  1 

i 

1 

.       i    i 

zu 


AMERICAN  CRIMINAL  REPORTS. 


show-n  that  the  defendant  was  under  a  reosoniiblc  fear  of  his  life  fi-om  the  Je- 
fon.scd,  thi;  deceiisod's  temper,  in  connection  with  V're\'ious  threats,  etc.,  is  gulli- 
ciently  pjirt  of  the  res  ycntw  to  go  iii  evidence  ivs  exiiliuiivtory  uf  the  utiitc  of 
defense  ui  which  the  defendant  phicod  himself."  2  Whurt.  Criiu.  l.uw  (7th  ej ) 
§C41. 

In  Stiitv  r.  linjaiit,  5-j  Mo.,  7o,  the  evidence  t<"nded  to  nhow  that  tin-  dccoa-cd, 
lit  the  time  ho  was  killed,  had  graiiiiled  the  defendan*',  and  wa.'<  tryinjr  to  pull  a 
slung  .shot  out  oi  his  iiocket.  The  defense  ottered  to  show  tliat  live  (li'ci'accd  wah 
a  desperatt."  and  dangerous  man,  and  the  evidence  was  excluded,  lldt],  enor. 
The  court  say:  "  Wliilst  it  is  perfectly  true  that  the  character  of  the  (li'coii.si'ii 
affords  no  justification,  iuid  will  not  even  palliate  the  crime,  whi.'re  it  ainiears  that 
tlio  defendant  was  the  aggressor,  and  provoked  the  altercation,  still  it  fri'i|uoiitlv 
becomes  of  great  importance  in  deteni\i)iing  the  degi'ee  and  (jnality  of  tln'  otfeiiso. 
A  bad  man,  as  well  as  a  good  one,  is  I'ljually  under  the  protecti(.>n  of  the  huv,  l.mt 
in  a  case  of  homicide,  when  it  is  doubtful  wliether  it  was  comuiilted  with  iimlia' 
cr  from  a  well  grounded  apt)re]iension  of  danger,  it  is  necessaiy  t(.>  t.iko  u\b 
couL-ideration  the  fact  that  the  deceased  wai  desperate,  violent  or  dangerous.  A 
poa''eal)le,  well  disposed  nuui,  although  in  anger,  might  excite  very  httlc  fear, 
M'liilst  the  menacing  attitude  of  a  cruel,  vinchctive  and  desp(<rate  person  wouM 
cause  the  gn'atest  apprehension,  ami  .justify  a  line  of  action  in  the  one  case  which 
v.'ould  l)e  wiiolly  unwarrantable  in  the  other.  11  is  tlirrefon;  evident  tiuit  the  char- 
fi'jteristics  of  the  deceased,  with  the  ri'-strictions  placed  upon  theni  by  tlii'  court, 
did  not  meet  the  case,  A  man  may  not  be  pcaee.ible.  and  still  liave  intliinf,'(lim- 
gcrous  about  liini;  ho  may  be  the  very  reverse  of  (piiet,  and  yet  not  in  iniyway 
dangerous  ei-  desperate.  The  very  traits  of  character,  which  it  was  iaiiortunt to 
show  as  tin-owing  light  upon  Uie  character  of  the  olfense,  wen,'  tin.'  veiy  ones 
which  the  court  would  not  permit  to  go  to  the  jury. 

In  Monroe  r.  Sfufc,  o  tia.,  >^'>,  where  it  was  doubtful  wliether  the  killing  was 
malicious  or  in  self  defense,  the  courf  rejected  evidence  which  was  ollcvfil  on  tin; 
part  of  the  defense,  which  went  to  show  tliat  the  direased  was  a  viulciit,  rash 
and  bloody  mindi'(l  man,  reckh'ss  of  human  hfe,  in  the  habit  of  takiiiL;'  ailvantat,'0 
of  his  adversaries  in  pi'rsonal  contests,  and  that  the  prisoner  was  well  ai'iiiuilntoil 
v.-ith  his  character  in  this  inirtieular.  The  rejeetioi  of  the  <'vidi'n(e  i.\  as  lii'M  onor. 
The  court  say:  "As  a  general  rule,  it  is  true  that  the  slayer  can  derivi'  no  a^l- 
\'antag''  from  the  cliaract''r  of  the  deceased  for  vinleuce,  provided  the  killing  took 
I'iace  under  (ircunistances  that  showed  he  <lid  not  belie've  hiiii>rlf  ia  daugi'r, 
Yet  in  cases  of  doubt  whether  the  homicide  was  perpetrated  in  mali.  e.  or  from  a 
lirinciple  of  self-preseiTation,  it  is  proper  to  admit  any  t'stiniouy  caliMilatctl  to 
illusfrati'  to  the  jury  the  motive'  by  which  the  i)risoner  was  actuati'd.  '■'>  S,  A:  P., 
;i'J.^.  And  in  this  view,  we  think  the  evidence  was  inii>roiierIy  ruled  out,  Hi'a- 
sonable  fear,  under  our  code,  repels  the  conclusion  of  malice;  and  has  not  tin; 
character  of  tlw?  deceased  for  violi'uce  nnich  to  do  in  determining  the  reasonahlo- 
ness  or  unreas'inableness  of  the  fear  under  which  the  defendant  claims  to  hav^' 
acted?  Hoes  it  make  no  ditl'erenct!  whether  my  adversarj'  1k>  a  ivckless  and  over- 
liearing  bully,  ii.iving  a  heart  lost  to  all  social  ties  and  order,  and  fatally  lienton 
mischief;  or  is  a  man  of  t^uaker-like  mien  and  deiiortnient':'  ( Jue  who  nuvur 
•trikes  except  in  self-defense,  and  then  evincing  the  utmost  reluetance  to  shcJ 
lilood?  We  apprehend  that  the  imminence  of  the  danger,  as  well  as  the  chance 
of  escape,  will  depend  greatly  upon  the  temper  and  disposition  of  our  foe.   In 


;  i"};';W: 


PEOPLE  V.  ALIBEZ. 


345 


the.«e  cases,  ovory  iiidividiuvl  must  net  upon  his  own  jiulRrocnt,  ami  in  view  of  his 
Hilemnvcsiionsiliility  to  tlio  liiw.  If  tho  iissailant  iiit<'ii(l  to  commit  a  trpspass 
onlv.to  kill  liim  i''  >iifiiisl((ii(/hfi'r;  lint  if  \w  design  to  commit  a  fdony,  thu  killing 
i^felf-iH'''""''  iii'd  jnstilialile.  1  llawlc.  P.  C.,ch.  28,  sec.  '2:5;  1  East  C.  L.,  272. 
fflio,  kiiowiiif,'  tin;  character  of  Kyil,  tho  iiiratc,  or  of  tho  infamous  John  A, 
JIiuwll,  would  not  instantly,  upon  their  ainn'oacii  armed  with  deadly  weapomi, 
id  upon  the  presumption  that  rohViery,  or  murder,  or  both,  were  contemplated?  " 


Pkoi'i.e  vs.  Aliijkz. 

(49  Cal.,  452.) 
IIoMicu)!::    Dii/illciii/. 

On  a  (lemniTer  for  dnph'city  to  an  indictment  for  mm-der.  containing  hut  one 
count,  ciiarf,nn;,'  the  mui'iier  of  three  persons,  it  was  Iuhl  that  tlie  count  was 
IhkI  as  charj^nny  three  ott'enses. 

The  luunlfH'  of  three  persons  constitutes  necessarily  three  ott'enses. 

"WAr.r.Aci;,  C.  J.  Tlic  iiidictiucnt,  containiiii,^  Ijiit  a  single 
count,  cliiiri,'os  tliat  tlie  tk-fendunt  "unlawfully,  iiiid  with  malice 
iifoi'etlioiii,dit,  and  in  and  n]>on  1'.  Aliht'z,  C  Aliboz  and  II.  Ali- 
k'Z.  dill,  wilfidly,  unlawfully,  maliciously  and  feloniousl}-  ad- 
minister a  ])oisi)n<>ns  dniu^,  known  as  strychnine,  with  intent 
tlicm,  the  said  P.  Alihez,  C.  Aliliez  and  \l.  Alibez,  to  nidawially 
ami  niiiliciously  kill  and  murder,  and  did  maliciously,  uidawfully 
amlfeloniously  then,  aTid  there,  by  administering  said  poisonous 
drug,  tu  wit,  strychnine,  unlawfully,  premeditatedly  and  with 
malice  aforethought,  kill  and  murder  the  sai<l  1*  Alihez,  C.  Ali- 
liez and  \l.  Alihez,  contr.ary  to  the  form,  force  an<l  ell'ect  of  tho 
statute,"  etc.  The  defi'iidant  til:  1  a  demurrer  to  the  indictment, 
on  the  ground  that  it  charges  more  than  one  oflen^^c;  tlie  demur- 
rer was  overruled.  A  trial  was  subsequently  had  upon  a  plea  of 
noti'iiiltv,  and  a  verdict  of  guiltv  of  murder  in  the  first  degree 
having  been  found  by  the  jury,  the  defendant  moved  the  court 
in  arrest  of  judgment,  upon  the  ground  that  more  than  one 
otfense  had  been  charged  in  tlic  indictment.  The  motion  was 
denied,  and  judgment  having  been  rendered  upon  the  verdict, 
the  case  is  brought  here  u])on  ap])eal. 

The  statute  (Penal  Code,  954)  under  which  the  proceedings 
in  question  were  had  distinctly  provides,  that  the  indictment 
"must  charge  but  one  ofi'ense,"  while  it  is  self-evident  that  tho 


r'>'-  II-  '      .■'"3!" 


1  ■, « 1 


340 


AMERICAN  CRIMINAL  REPORTS. 


indictment  here,  charging  the  defendant,  as  it  docs,  M-JtU  the 
murder  of  three  i)ersons,  necessarily  charges  tlireo  offenscf. 
The  slightest  examination  of  the  statute  upon  the  part  df  tlie 
district  attorney,  in  the  first  instance,  wo\dd  have  prevonted  t-ucli 
a  blunder.  Even  if  he  liad  overlocjked  it,  however,  at  the  out- 
set, it  would  seem  that  the  demurrer  and  motion  in  arrest  of 
judgment  subsequently  made  ought  to  have  called  it  to  his  at- 
tention. 

Judgment  reversed  aiid  cause  remanded,  ■with  directions  to 
the  court  below  to  sustain  the  demurrer  to  the  indictment,  ami 
to  dispose  of  the  prisoner,  with  a  view  to  submitting  the  charge 
to  another  grand  jury. 

KiLiis,  J.,  did  not  ex])ress  an  opinion. 

Note.  —  In  Clem  r.  Slctfc,  42  Iiul.,  420,  the  siiine  quostion  arose  uiid  was  do- 
ciilod  ditlert'iitly.  In  tliiit  case,  the  pri.soner  was  indietetl  for  murcli'r  for  killing' 
one  Jacob  Yoiiny,  liy  a  pinshot  wouiitl.  Slie  iih'aded  a  fornn'r  acciiiittal.  Tlw 
1  ilea  set  fortli  tliiit  she  liad  foniierly  lieeii  tned  on  an  indict  uient  for  immliv, 
charyinjf  the  killing,'  of  Nancy  Jane  Younj,'  by  a  f,'niishot  wonnd,  and  tliat  A\ii 
was  aciiuilted  on  that  trial  of  nmrder  in  the  first  decree,  and  convictcil  of  munlr 
in  th(!  second  dej,'ree,  and  tliat  jndg-nient  was  rendenxl  npon  the  venhct.  Tlw 
plea  furtlier  set  fortli  that  the  two  indictments  cliaryed  identiciUly  the  smw 
off'ens(^,  and  (inferentially)  tliat  the  sauK!  act  caused  both  di-aths.  To  thi.s  \k\i 
the  state  demurred,  and  tlie  d'-nun-rer  WiW  sustained  and  the  plea  overruled,  to 
whicli  the  defendant  excepted.  I'he  defendant  then  pleaded  not  H'"'hy,  ami  on  a 
second  trial,  was  convicted  of  muidi'r  in  the  second  dej^ree.  The  case  was  takiu 
'•3'  appeal  to  the  suiireme  court,  where  it  was  held  that  the  overrulinj;:  of  the  pka 
was  error,  and  that  "  the  killing'  of  two  or  more  ])ersons  by  the  same  act  cnn-ti- 
tuted  but  one  crime."  In  sui)port  of  this  proposition,  the  court  cite  State  r.  IM)'- 
row,  2  Tyler,  .'5S7,  an  assault  and  battery  case;  Ben  c.  Stale,  22  Ala.,  9,  a  case  of 
poisoninjj:,  and  various  other  authorises. 


SAUNma:s  vs.  Pkoi'le. 

(29  Mich.,  209.) 

IIousK  OF  Ii.ii  Famk:    Erlileiice  — Pleading. 

In  an  information  for  lettinj,'  a  house  for  the  purposes  of  prostitution,  the  state- 
ment of  the  locality  of  the  house  need  not  be  more  precise  than  in  informa- 
tions for  burglary  or  arson. 

Time  in  an  information,  wlun-e  it  is  not  matter  of  description,  need  not  U 
proved  tus  laid. 

It  is  eiTor  to  allow  a  jury  to  infer  a  fact,  of  wliich  there  is  no  evidence. 


SAUNDERS  V.  PEOrLE. 


3i7 


■^^^ 


'       1 


In  a  prosecution  for  letting  a  house  for  the  puii)ose  of  a  prostitution,  it  is  ail- 
missililo  to  prove  the  roputiition  of  the  lessee,  and  of  girls  who  were  seen  in 
tlie  house. 

Testimouy  which  shows  that  the  lessee  of  a  house  and  women  who  had  been 
scm  m  (lie  house;  were  reputed  prostitutes  is  not,  of  itself,  sullicient  to  es- 
tablish tlie  fat't  that  the  house  is  kept  or  used  as  a  house  of  prostitution. 

Exc'KiTi()N>>  from  liocordor's  Court  of  Detroit. 

Jfiddv  JIuMon,  Attorney  (iencnil,  for  the  people. 

Browse  T.  Vrcntia  uud   Gcoiye  IF.  Poininian,  for  the  re- 

fpoiitleiit. 

CAMruKM,,  J.  Tief;i)on(.lent  was  convicted  under  section  7702 
of  the  compiled  laws,  of  letting"  a  dwell in<^  house,  "  knowing 
tliat  the  lessee  intended  to  use  it  as  a  place  of  resort  for  the  pur- 
pose of  prostitution  and  lewdness."  The  same  section  contains 
aproliihitiou  and  penalty  against  knon'ingly  permitting  a  lessee 
to  use  u  dwelling  house  for  .such  purposes,  but  the  infornuition. 
was  cuiilined  to  the  oilense  of  letting  with  guilty  knowledge. 

The  information  was  ohjectcd  to  as  not  describing  the  precise 
locality  of  the  dwelling;  and  objection  was  also  made  to  the 
proof  of  a  lease  dating  back  more  than  a  year  before  the  time 
set  forth  in  the  information. 

AVe  do  not  think  the  locality  needs  any  more  precise  descrip- 
tion under  the  usual  practice.  The  name  of  the  lessee  is  given. 
There  has  always  been  much  looseness  in  the  desci'iption  of 
places  in  indictment,  involvhig  crimes  connected  with  habita- 
tions. Indictments  for  burglary  or  arson  should  contain  as  ac- 
curate references  to  the  place  of  the  oftense  as  the  purposes  of 
tins  statute  require.  ]>ut  such  a  description  as  is  given  here 
would  he  suflicient  at  common  law  in  those  cases. 

It  was  certainly  a  stretch  of  propriety  to  give  a  date  of  leasing 
so  very  remote  from  the  true  one.  But  where  a  date  is  not 
given  as  a  matter  of  description,  the  ]>ractice  has  allowed  the 
time  to  he  alleged  without  any  reference  whatever  to  the  truth. 
We  are  unable  to  say  that  the  variance  in  the  present  case  is 
sucli  as  to  all'ect  the  legality  of  the  proceedings. 

The  prosecution  proved  the  lease  by  the  lessee,  Mary  Lavall, 
who  denied,  however,  that  there  was  any  improper  use  or  intent. 
She  was  allowed,  under  objection  from  respondent,  to  state  the 
amount  of  the  rent.  AV^c  can  see  no  reason  why  any  of  the 
terms  of  the  lease  should  be  excluded.     But  in  charging  the 


348 


AMERICAN  CRIMINAL  REPORTS. 


■■■l^U 


;  ■■■  F. 


jury,  the  court  jiUowed  tlieui  to  consider  the  amount  of  tlie  rent 
ns  having  a  bearing  on  tlie  likelihood  of  such  a  rate  beiiiir  p;\i(l 
exce})t  for  ini[)roper  puri)oscs.  Tliis  was  clearly  errDi-,  us  there 
was  no  pro(»f  introduced  to  create  a  standard  of  comparison;  and 
it  would  1»e  extcniely  dangerous  to  leave  juries  at  liberty  to  de- 
rive coiudusions  based  upon  nothing  but  conjecture. 

Objection  M'as  also  nuxde  to  the  introduction  of  testimony 
tending  to  prove  that  ^Mary  Lavall  was  a  woman  of  ill  repute, 
and  had  kept  houses  of  ill  repute,  and  that  girls  seen  in  the 
house  were  rejuitc  i  to  be  prostitutes. 

It  is  true  that  n  j  one  can  be  convicted  upon  evil  repute,  with- 
out proof  of  actual  misconduct.  Persons  and  houses  may  bear 
an  ill  name,  and  yet  there  may  be  nothing  kiu)wn  against  them 
which  would  justify  the  interference  of  the  law.  And  the  re- 
spondent could  not  be  lawfully  convicted  on  such  testinioi.v, 
without  evidence  of  some  act  which  comes  within  the  statute. 

Ihit  the  fact  that  certain  proof  offered  is  not  sufficient  to  nuiko 
out  a  case  is  no  reason  why  it  should  not  be  receive!  tn  make 
out  a  part  of  it.  It  was  necessary  in  this  case,  not  only  to  prove 
the  intended  and  actual  use  of  the  dwelling  for  tlie  unlawful  pur- 
pose, but  to  shew  that  the  resjMUulent  knew  it  was  so  intended 
when  he  first  leased  it.  It  is  iu>t  likely  that  persons  who  come 
to  an  understanding  on  sucli  a  purpose  will  express  it  in  writing', 
or  even  express  it  at  all.  Criminal  agreements  are  often,  if  not 
usually,  made  tacitly.  They  can  only  bo  proved  by  circum- 
stances. If  a  ])ersun  leases  a  house  to  a  woman  of  ill  repute,  and 
knows  of  that  repute,  and  the  house  is  thenceforth  used  for  un- 
lawful purposes,  and  such  use  is  known  to  him,  these  facts  inu:^t 
be  regarded  as  having  a  teiulency  to  create  belief  in  his  guilty 
knowledge,  or,  at  all  events,  as  bearing  upon  that  fact.  All  the 
facts  cannot  be  brought  in  at  once.  Each  is  proved  se[iHrately, 
and  the  order  of  proof  must  be  left  somewhat  discretionary.  If 
facts  cnougli  are  not  shown,  the  resjiondent  cannot  be  convicted, 
but  no  relevant  fact  can  be  excbuled  merely  because  it  does  not 
by  itself  ])rovc  the  whole  case.  This  testimony  was  all  relevant, 
and  therefore  properly  received. 

AVe  think,  however,  that  an  error  was  committed  in  permit- 
ting a  conviction  when  there  was  no  evidence  of  the  main  fact. 

The  attention  of  the  court  was  called  to  the  question,  and  the 
judge  was  asked  to  charge  that  there  was  no  evidence  that  de- 


SAUNDERS  V.  TEOPLB. 


849 


femliint  kiunv  the  house  was  resorted  to,  or  that  it  was  resorted 
to  in  fact,  for  tlic  purpose  named,  but  this  was  refuaod. 

Tlie  tcstiinouy  tended  to  show  nothing  more  than  the  evil  re- 
pute of  tlie  Ics.see,  and  of  other  women  who  had  been  seen  in  the 
lioUffC.  Tliore  was  no  evidence  of  any  acts  of  lewdness  com- 
iiiittcil  tlieru,  and  no  evidence  tliat  men  resorted  there  at  all.  If 
tliei'c  had  been  })roof  that  tlie  liouse  was  resorted  to  by  men  as 
\vcll  iif^  wuiiien  of  ill  fame,  the  jury  could  draw  any  reasonable 
iiifereiict'  from  such  facts.  J  bit  the  law  does  not  punish  the 
mere  letting  of  houses  to  bad  characters.  It  is  the  use  of  the 
Luusc,  and  not  merely  the  repute  of  its  inmates,  which  the  par- 
ticular statute  under  consideration  was  intended  to  reach. 

■\Vliiitovcr  may  be  the  probability  that  the  house  will  1)0  im- 
properly used  when  in  such  hande,  yet  thei'o  must  be  clear  proof 
of  intent,  to  satisfy  the  law,  and  the  fact  of  such  use,  fn»m  which 
in  this  case,  the  intent  was  sought  to  be  derived,  is  not  to  be  as- 
sumed without  proof,  direct  or  circumstantial.  If  the  inmates 
commit  otl'enses  elsewhere,  the  landlord  is  not  made  res])onsiblc 
for  wliat  is  not  done  on  his  premises,  and  the  court  erred  in  al- 
lowing the  case  to  be  disposed  of  without  testimony  tt  nding  to 
titaljlish  the  misuse  of  the  house. 

"We  do  not  wish  to  be  understood  as  holdiui^'  that  if  there  is 
dear  proof  of  a  letting  with  the  distinct  understanding  that  the 
house  is  to  be  used  for  unlawful  ])urposes,  any  proof  of  actual 
use  would  be  necessary.  The  crime  nuiy  be  complete  at  the  time 
of  tlie  lettinij,  and  sucli  is  the  meaniiii>-  of  the  statute.  I'ut  in 
the  ease  licl'ore  us,  there  was  no  ])roof  of  such  design  that  could 
have  suffictMl  without  the  evidence  of  the  actual  use,  and  therefore 
the  evidi'ure  became  essential. 

Upon  the  other  principal  rulings  of  the  court,  so  far  as  they 
are  likely  to  be  called  for  on  another  trial,  the  objections  taken 
do  not  seem  to  Ije  based  upon  any  substantial  variance  between 
charges  asked  and  given.  The  distinctions  are  over  nice,  and 
lacking  in  importance. 

For  the  errors  before  noted,  the  conviction  should  be  set  aside 
and  a  new  trial  granted,  and  directions  given  to  the  court  below 
accordingly. 

CooLEv  and  Ciikistiancv,  JJ.,  concurred. 
Gkaves,  C.  J.,  did  not  sit  in  this  case. 


I'll 


I 


350  AMERICAN  CRIMINAL  REPORTS. 

Sylvkstku  vs.  State. 

(42  Tex.,  49G.) 

House  of  Ill-Fame:    Evidence. 

E\n(lcncp  of  tlio  >x*'ni'nil  reputation  of  a  house  is  adniisKiblo  for  tlio  \\m\m(i  of 

ostalilisliiiii,'  itrt  ciiaraeter  as  a  house  of  iirostitution. 
Wlictlicr  such  evidence  is  sulHcient  standing  nlone  to  snsitaiii  a  tonviitkui 

qi.iiire. 

Ai'i'KAr,  from  Criiuiiial  District  Court  of  GtiJi'rxtnn  Countv. 
Tried  below  Iieforc  tlie  Hon.  Samuel  J)o(lgc. 

Marj  Sylvester  was  indicted  for  keepiiii,'  "  a  dissonlorlv  lKni?e 
for  the  ])urposc  of  public  prostitution,  and  as  a  conunuii  result 
for  j)rostItutes." 

On  tlio  trial,  witness  Drew  testified  that  lie  knew  the  (lefoiul- 
ant,  and  her  residence,  in  IST-t;  knew  the  general  charactor  ainl 
reputation  of  defendant  to  he  that  of  keeping  an  assi^jmitiou 
house;  that  he  had  been  at  the  house  of  defendant  and  had  mot 
one  woman  there  for  a  lascivious  purpose.  J)efeiidaiit  lived  in 
Galveston  city,  near  Schmitt's  garden;  saw  two  or  three  other 
women  going  out  at  the  back  door  at  the  time. 

Tim.  Jjrown,  James  l»aker,  and  four  others,  testitled  that  tliev 
did  not  know  where  the  house  of  defendant  was  situated  as  to 
the  street,  but  it  is  situated  in  (lalveston  city  ami  county;  kncv 
the  general  character  and  reputation  of  defendant's  house  tolio 
that  of  an  assignation  house;  and  on  cross-examination  by  de- 
fendant, witness  stated  that  their  information  of  general  reputa- 
tion was  formed  from  talking  with  their  associates  and  acquaint- 
ances, and  what  they  heard  thciu  say. 

This  testimony  was  admitted  over  the  objections  of  the  de- 
fendant.    Defeiulant  was  convicted,  and  appealed. 

Mills  c&  Ferris,  for  appellant. 

Franh  M.  Sjjenccr  and  i\^.  G.  Kittrell,  for  the  state. 

Gould,  J.  The  case  of  Morris  v.  The  State,  38  Tex.,  C03, 
recognizes  the  admissibility  of  evidence  of  the  general  reputation 
of  a  house  for  the  purpose  of  establishing  its  character  as  a  hou«e 
of  prostitution.  The  admissibility  of  such  evidence  is  su]>poi'ted 
by  decisions  of  other  courts.  See  The  State  v.  J/cM'/'v//, 
Dudley,  S.  C,  340;  The  State  v.  Hard,  7  Iowa,  412.  AVharton 
says:  "Commou  reputation  of  the  character  of  the  defeudauts, 


pi^^^m 


STATE  V.  BOARDMAN. 


mt 


ami  the  house  which  they  ke]>t,  and  of  the  persons  visiting  them 
iinJiuis^ihlo."   3  AVhart.  Am.  Cr.  Law,  sec.  2;>03. 

It  is  bt'liovotl  to  be  well  settled  that  the  character  of  the  oc- 
cupants may  be  cstablihhed  by  evidence  of  their  general  reputa- 
tion. 2  Dish.  Cr.  IV.,  sec.  93.  AVhilst  It  is  trtio  that  the  admis- 
fibilitv  of  such  evidence  as  t(j  the  house  is  denied  by  somo 
authorities  (see  (.'(U/i.  v.  Steimrt,  1  Sei'g.  &  Kawle,  342),  we  seo 
no  sutticient  reason  for  dc])arting  from  the  ruling  in  MorrU  v. 
The  State. 

The  case  before  us  docs  not  present  the  question  of  the  suf- 
ficiency of  such  evidence  alone  to  sujiport  a  conviction.  Ono 
witness  testifies  not  only  that  the  house  was  so  reputed,  biit  pro- 
ceeds to  state  facts  which  show  that  he  knew  the  base  uses  to 
which  it  M'as  approi>riated.  AVliatever  doubt  we  might  entertain 
of  the  sufKcioncy  of  evidence  of  the  general  reputation  of  tho 
liouse,  unsup])orted  by  other  testimony  to  justify  a  conviction,  wo 
tliinlc  the  additional  facts  in  evidence  in  this  case  were  sufficient. 

A  distinction  is  made  in  the  argument  of  counsel,  between  an 
assignation  house  and  a  house  of  prostitution.  In  the  absence  of 
evidence  to  the  contrary,  we  think  the  jury  were  justified  in  in- 
ferring that  the  use  of  the  house  as  an  assignation  house  was  by 
common  prostitutes. 

There  was  soine  evidence  on  behalf  of  defendant,  to  the  effect 
that  she  lived  a  quiet,  peaceable  life,  and  that  there  was  no  noise 
or  disturbance  at  her  house.  This  may  have  been  true,  and  yet 
the  house  have  been  "  disorderly ''  in  the  meaning  of  the  law. 
A  house  of  prostitution  is  within  the  act,  however  quietly  and 
peaceably  it  may  be  kej^t.     The  judginetit  is  affirmed. 

Affirmed. 


Statk  vs.  Boaudman. 

(G4  Me.,  523.) 

IIousE  OF  IllFajie:    Evidence. 


'\ 


Under  a  statuto  makinpr  tho  keepinj?  of  a  house  of  ill  fame  resoiicd  to  for  lewd- 
ness a  common  miisanco,  "iionse  of  ill  fame"  moans  tho  siunc  thing  aa 
"bawily  house."  Ami  the  gist  of  tho  ott'ense  being  the  use  of  the  house  for 
lewd  purposes,  ami  not  its  reputation,  evidence  of  tho  reputation  of  tho 
house  is  not  admissible. 


"f",     yl?l».'> 


■ill  i 


;i:Ui 


'■  \ 


353 


AMi:iUCAN  CRIMINAL  RKrollTS. 


In  11  ]>rosiYiitioii  for  ki'i'))inj;  a  liousi'  i)f  ill  fame,  fvidinuo  of  ilic  ri'iKitatimi  nf 
the  wonii'ii  wlio  fn'mu'iit  the  houne,  ami  tlio  i'Iuu'ik.'Ut  of  tJicir  iutn  iiinUoii- 
vi'iNiitiiiii  ill  1111(1  iilioiit  till'  luMis'.',  is  ('(iiii|M'tt'iit. 

In  II  jirosiviitioii  for  iiiTpiiij,'  u  Ikhisc  of  ill  fume,  the  house  iiuiMt  he  proved  (,) 
be  a  house  of  ill  fame  V)y  fiietw,  ami  not  liy  fame. 

Dk'KKKsox,  J.  The  (lofcMidant  is  indictud  for  l<t'0])iii^r  ^  ],o„^g 
of  ill  fmno,  resorted  to  for  the  jJiirpose  of  i)rostitutinii  iind  lewd, 
liens.  The  oil'eiuse  churned  is  tluit  of  a  eoimiioii  iiiii.siiiico.  Tim 
l!Ui:,'naoje  of  the  statute  is  us  fidlows:  '*  All  pliices  used  as  liousos 
of  ill  fiiiiie,  resorted  to  for  Icvdiiess  or  e^iiinhliiii^,  for  the  illoijiil 
Side  or  keeping  of  iiito.\icivtiii<;  licjuors,  lire  eominon  imisaiice>.'' 
11.  S..  eh.  77,  ??  1.  Section  2  of  the  siiine  (•h!ij)ter  iiiakes ''iiiiv 
]icrson  keeping' or  niiiiiitiuiiiiij^  such  luiisiiiico"  liahle  to  line  ur 
iinjirisoiimeiit  in  the  countj  jiiil. 

The  terms  "house  of  ill  fame''  and  "  bawdy  liouse"'  are  syn. 
onymous.  "A  hawdy  house,"  says  JJouvier,  "  is  a  house  uf  ill 
fame,  kept  for  the  resort  and  unlawful  convenience  of  lewd  pen- 
pie  of  both  sexes.''  So  Archbold  detines  a  bawdy  house  to  he  a 
house  ke])t  for  the  resi>rt  and  convenience  of  lewd  ])eo]ilo  of  Ixith 
se.xes.  1  l)Ouvier's  Law  Die,  li.  b.;  2  Archbold's  Criui.  I'rac.  i\: 
Plead.,  KKm;  P.ish.  Crim.  Law  (."ith  ed.)  18S3;  McAIJldu' v, 
Cfarh',  83  Conn.,  !>2. 

The  common  signification  of  the  word  corresponds  with  its 
technical  meanimj.  "A  bawdv  house,"  savs  Worcester, '•  is  a 
house  used  forlewdilcss  and  prostitution,  a  brothel."  The  idiMi 
conve3'ed  by  the  term  "house  of  ill  fame,"  or  its  syuonviii 
"bawdy  house"  is  that  of  a  house  "resorted  to  for  the  iiurpuscs 
of  lewdness  and  prostitution."  A  "  house  used  as  a  house  of  ill 
fame"  is  a  house  thus  resorted  to;  it  cannot  be  so  used  unless 
it  is  thus  resorted  to,  and  if  it  is  resorted  to  for  such  purpose,  it 
is  "a  house  used  as  a  house  of  ill  fame,"  in  the  ])urview  of  tlm 
statute,  though  it  may  not  have  that  reputation.  1'he  phrase, 
"resorted  to  for  lewdness,"  contained  in  the  statute,  does  not 
qualify,  enlarge  or  change  the  meaning  of  the  preceding  clause 
in  this  case;  the  statute,  in  this  case,  has  the  same  incaMiug  and 
ajiplication  Avithont  as  with  that  phrase. 

In  order  to  make  out  the  oflense  charged  in  the  indictment, 
under  our  statute,  it  is  necessary  to  establish  two  things;  tirst, 
that  the  house  was  used  as  a  house  of  ill  fame;  and  second,  that 
the  defendant  kept  it.     The  gist  of  the  oii'ensc  consists  in  the 


^  ■' .  ["Tf — n 


STATE  r.  BOARDMAN. 


353 


luc  not  in  tlic  reputation  of  tlic  liouso.  Its  lepntutiun  for  Icwil- 
iii'fs  iiinl  |iriistituti<»n  miiy  be  ever  so  cleiirly  estiiMislicMl,  und  yet 
if  tlie  cvith-nce  (U»e.s  not  show  tlmt  It  was  in  truth  utied  for  tlioKO 
i,iir|t(isL'!*,  tlie  tirrtt  element  in  the  ofVense  im  not  proved;  hut  if 
tliat  is  iiiaile  out,  it  is  immaterial  what  the  rei»utati(>n  of  the 
ImiisC  wiis,  or  whether  it  had  any.  The  reputation  of  the  house, 
miller  (Uir  statute,  makes  no  i)art  of  the  issue.  Testimony  as  tn 
its  repiitiitioii  has  lu)  tendency  to  estahlish  the  issue  that  it  wa? 
inflict  used  as  a  house  of  ill  fame,  and  is  liuvdmissible  as  mere 
liiaiviiv  evidence.  On  trial  of  an  indictment  for  a  nuisance,  it 
i^iiot  iuhiiissihle  to  show  that  the  "general  reputation  of  the  sub- 
ji'ct  of  the  nuisance  cluu\ij;ed  was  that  of  u  nuisance.  2.  Whart. 
Criin.  hiiw,  ii  2:5(17;  3  (Jreenl.  on  Kv.  (r.th  ed.),  jSC;  2  Hisli. 
Criiii.  Pnic.  .^  !>1.  The  jud<;e  in  the  court  below  erred  in  admit- 
tiiijr  >U('li  evidence. 

■\Vc  lire  aware  that  the  court  in  Connecticut,  in  Cahbocll  v. 
Tin:  Stiifi,  17  Conn.,  4(17,  held  that  to  support  such  an  informa- 
tiiiii.  under  the  statute  of  that  state,  it  is  necessary  to  prove  that 
tlie  p;eiioriil  reputation  of  the  house  was  that  of  a  bawdy  house, 
anil  tliiit  it  was  such  in  fact.  To  establish  the  first  ))ro])Osition, 
tliecuurt  in  that  case  adniittcd  evidence  of  reputation  of  tho 
liou^e,  hut  distinctly  say  that  such  testimony  would  be  clearly 
ina(lmis^ible  to  prove  that  tho  house  was  in  fact  a  house  of  ill 
fiuno.  AVe  have  seen  that,  under  the  phraseolog}'  of  our  statute, 
it  is  not  necessary  to  prove  the  re])utation  of  the  house,  ami  tho 
o;ise  of  T''/'/"'! //  r.  The  State,  17  Conn.,  407,  thus  becomes  au- 
t'lioi'ity  fur  excluding  evidence  of  re])utation  in  this  case.  2  liish. 
Crim.  Prnc,  .^  !>1. 

Eviilciice  of  the  rei)utation  of  the  women  freciuenting  tho 
house,  and  the  character  of  their  conversation  and  acts  in  and 
aliout  it  is  competent  in  such  cases,  as  the  judi^c  ruled.  Coui- 
miiiiu'aiJt/,  V.  Kliahdll,  7  (J^ray,  32S;  Coiauioniocdlth  v,  Gan- 
hiUA  Allen,  S. 

Tiic  judge  also  properly  overruled  the  defendant's  plea.  Ware 
V.  llrt/ts  8  :Sle.,  42;  rublic  Laws  of  1808,  eh.  151,  §  0. 

l^lxcept  lo  n  s  svsta  in  cd. 

Ari'Lrrox,  C.  J.,  "Walton,  Bauuows,  Yiugin  and  Peteus,  JJ., 
concurred. 

The  chief  justice  and  concurring  justices  appear  also  to  have 
assented  to  this  note  upon  the  case  by 
Vol.  I.  — 23 


1  1 

! 

n 

i  i 

3 


M 


3oi 


AMERICAN  CRIMINAL  RErORTS. 


Pkteij!*,  J.     The  lionse  must  Lo  proved  to  be  a  house  of  ill 
fume  by  facts,  and  not  by  fame. 


,i 


Bau^mer  vs.  State. 
(49  Ilia.,  544.) 
IxCKST :    Indict Dtcnt  —  Joint  ojroisc  —  E/fcd  of  acquittal  of  one. 

Uiulor  (lio  sti\tiito  of  liuljimii  iigniiist  incost  l)ct\voi'n  stcii-son  and  .^top-motkrt 
each  must  liavo  laio\vU'(lyo  ot  tlio  n'l.itionship,  ami  an  inilittiiiont  ayaiii-t 
the  stop-son  which  does  not  alh.>^'e  tliat  the  step-uiothoi-  know  of  HumvIa- 
tionship  is  luul  on  a  motion  to  iiuash. 

Incest  is  a. joint  offense,  antl  if  one  of  Die  parties  lias  been  tried  and  acvjiii;!.  i, 
this  fact,  if  pleaded,  Ls  a  bar  to  the  prosecution  of  the  other  party  f  ;■  tb: 
same  oll'euse. 

DowNKv,  J.  Tills  was  a  prosecution  against  tlie  appellant  fur 
incest.     Tlie  charge  in  the  indictment  is  as  follows; 

''The  grand  jurors  fur  said  state  of  Indiana,  iinpauelc'l, 
charged  and  sworn  in  the  Wayne  circuit  court,  to  iiKiuiro  witliii! 
and  for  the  body  of  the  same  snid  county  cif  \\^ayiie,  upon  their 
oatlr,  charge  and  present  that  Arthui'  l^aumer,  late  of  sivjI 
county,  at  said  county,  on  the  IjOth  day  of  ^lay,  A.  1).  lS74.dkl 
then  and  there  unlawful]}'  have  sexual  intercouse  with  his  step- 
mother, Augusta  I>aumer,  then  and  there  knowing  the  said  Au- 
gusta ]*aumer  h)  be  his  step-mutlier,  contrary  to  the  furmnf 
the  statute  in  such  ca-jC  made  and  provided,  and  against  tiu 
peace  and  dignity  of  the  state  of  Indiana." 

The  defendant  moved  the  court  to  (|uash  the  indietnioat,  but 
his  motiipii  was  overruled,  and  he  excejited.  lie  then  iilciulod  w 
speciid  jilca  in  bar,  in  which  he  alleged  •*  that  the  said  grand  jurv. 
which  found  and  returned  tlie  indictment,  at  the  Xovoinliir 
term,  1^74,  of  the  said  court,  also  ftiund  and  rcturiied  at  tlic 
same  tiuie  into  said  court  as  a  true  bill  ami  iiulietment  w^m-: 
Augusta  I'aumer,  charging  that  she,  the  sai<l  Augusta,  ou  tlie 

d;iy  of    May,   ]S74,  at  said    county,  did   uulawfiilly  liavo 

sexuid  intercourse  with  her  ste])->on,  Arthur  liniiiiier  lt!i:s 
defendant  meaning),  she,  the  said  Augusta,  then  and  tluro 
knowing  that  he,  the  said  Arthur,  was  her  step-sou,  wliicluai'l 
Augusta  Daumer  so  cliarged  is  the  same  Augusta  IJauiuonmme'l 
in  the  said  indictment  against  this  defendant,  and  the  said  Ar- 
thur Eaumer  named  in  the  said  indictment  against  the  said  Au- 


>•  "i»i  up"n   '>w 


BAUMER  p.  STATE. 


355 


,,.,jta  was  ami  is  this  dcfciulant,  and  tlie  act  of  sexual  inter- 
c,iiivse  eliar^'cd  in  said  indictment  is  tlie  same  act  of  sexual  in- 
torcouriie  cliai\i(ed  in  this  indictment  against  this  defendant,  and 
!Kiiie  other,  and  the  ofl'enses  cliargcd  in  the  said  two  indictments 
;,)  foniul  and  returned  l)y  tlic  said  jjjrand  jury  were  and  are  tlie 
fiime  to  all  intents  and  purposes;  and  afterward,  to  wit,  at  the 
'aid  Xoveuihor  term  of  ?aid  court,  the  said  Auijusta  Tjaunier, 
lieiijc  arrain'iied  in  said  crnirt  n])on  the  said  indictment  found 
anil  return™!  against  her  as  aforesaid,  pleadeil  not  guilty  thereto, 
riiJ  the  issue  being  joined  in  said  cause  between  the  state  of  In- 
ijiima  and  tlie  said  Augusta,  the  same  came  on  f(»r  trial  in  saiil 
fourt,  anil  was  there  tried  by  a  jury  duly  im])aneled  in  said 
ooml  and  on  said  trial,  it  was  proved  by  competent  evidence,  and 
lievnnd  a  reasonable  doubt,  that  the  said  Augusta,  at  the  time  of 
!lie  :-ai(l  alleged  sexual  intercourse,  hiul  knowledge  of  the  rela- 
'iciiship  existing  between  her  and  the  said  defendant;  that  she 
\a?  iit  saiil  time  the  sttp-motlier  of  the  said  di'fendant,  and  he 
v,;i3  her  stop-son ;  and  there  was  no  evidence  given  on  said  trial 
jiiTiving,  or  tending  to  prove,  that  the  said  Augusta  wis,  at  the 
;iincof  the  said  alleged  ini;er"ouivo,  or  at  any  utlier  time,  insane 
('!■  of  unsound  mind,  or  inca[>able  <if  understanding  the  criminal 
:i;iture  of  said  alleged  act;  and  the  said  jury,  having  lieard  the 
i'viijence  in  the  cause,  and  after  due  delil)L'rati(tii  thereon,  found 
;;iitl  returned  into  said  court  their  verdict  in  the  Avords  fjllow- 
iit'.to  wit: 

'•We,  the  jury,  find  the  defendant  not  guilty.*'  And  thereup- 
iiii  the  said  prosecution  against  her  was  fully  ended;  wherefore 
tliesaid  defendant  says  that  the  state  of  Indiana  ought  not  fur- 
:!ii'rt(p;»ro>ecute  *he  saiil  indictment  ai:';;'.;;:a  him,  and  ho  prays 
I'.iithe  may  l)e  discharged  thcrofroiu. 

The  state  demurri'(l  to  this  answer;  the  demurrer  was  sustain- 
d,  and  till.' dufonda lit  excepted.  The  prisniicr  then  pkada'd  not 
jruilty.  riie  eausL'  Nvas  ti'i^d  by  a  jury.  There  was  a  verdict  of 
railty,. with  punishment  of  nine  mouths  imprisonment  in  the 
(.imiity  jail,     dudgiuent  was  rendered  accordingly. 

Thf  errors  assigned  buiiig  in  <piestion,  the  action  of  the  court, 
:n overruling  the  motion  to  (piash  llie  indictment,  and  in  sus- 
taining the  demurrer  to  the  answer.  The  statute  on  which  the 
imlictuK'iit  is  founded  reads  as  follows: 

"If  tuiy  step-father  shall   have  sexual    intercourse   with  his 


i-l 


1^' 


T'ii 


n^' 


f  fn 


356 


AMERICAN  CRIMINAL  REPORTS. 


step-(laiig]iter,  kuowiiiij^lier  to  bo  sucli,  or  if  any  step-motlicraiK 
licr  stej*  soil  sluiU  ]m\X' sexual  intercourse  together,  liuviiitrkiiowi 
edge  of  tlieir  reliitioiisliip,  or  if  any  parent  shall  have  sexual  '<• 
tercourse  with  hit;  or  her  cliild,  knowing  him  or  her  to  In 
or  if  any  bnjther  and  sister,  heiiig  of  the  ago  of  sixteen  ui'  m,. 
wards,  shall  have  sexual  intercourse  together,  haviiiir  knowli'il" 
of  their  coiisaiiguiiiity,  every  person  so  oll'ending  shall  he dt'eiiaij 
guilty  of  incest,  and,  on  conviction  thereof,  ^hall  he  iiupriMjuil 
in  the  state  jirison  not  less  than  two  nor  more  than  ten  yeiuv,  n 
may  he  imprisoned  in  the  county  jail  not  less  than  six  iiur  mmi; 
than  twelve  months."     2  G.  A:  JI.,  i-jii,  sec.  4-5. 
The  section  may  he  analyzed  to  advantage: 

1.  It  declares  that,  '*  if  any  ste])-father  shall  have  sexual  in. 
tcreourse  with  his  step-daughter  knowing  her  to  he  such,"  k^ 
shall  he  guilty.  Here  the  step-daughter  is  not  legally  guiltvu" 
any  crime  The  step-father  is  guilty,  if  he  liave  ku()\vledi,'e  tli;;: 
she  is  his  ste])-daughter,  and  this  is  so  whether  she  lias  knowl- 
edge that  he  is  her  step-father  or  not.  The  crime  is  seiwnue 
and  several  on  his  part. 

2.  "  ]f  any  ste])-motlier  and  her  step-son  shall  have  sexual  in- 
tercourse together,  hav.'ng  knowledge  of  their  relitioiishi])." 

Tliis  language,  it  wili  he  })erceiveil,  is  (piite  diiiereiit  fromtln' 
preceding.  It  isre(piired  that  they  shall  have  sexual  iiitercoiiiH' 
together,  and  that  they  ,-hall  hoth  have  knowledge  of  their  nl;;. 
titinship.  in  this  case,  both  ])arties  to  the  act  hecaiue  guilty  an  i 
liable  to  jiunisliment.  The  crime  is  a  joint  one,  and  one  of  tl' 
])arties  cannot  be  guilty  unless  the  other  also  is  guilty. 

3.  ''  if  a. ly  parent  shall  have  sexual  intercourse  with  liisorli.; 
child,  knowing'  him  or  her  to  be  such.''  In  this  case,  the  paiv:': 
is  the  only  ]>arty  maile  criminally  responsible.  The  oriiiiL'  i- 
the  se])arate  and  several  crime  of  the  parent,  while  the  ohilJ  ;■ 
not  punishable  at  all.  Applied  to  persons  sustaining  this  ri'l;i- 
tion  to  each  other,  the  law  is  like  it  is  with  reference  to  the  ni;; 
tion  of  step-father  ami  step-daughter. 

4.  '■  If  any  brother  and  sister,  bi'ing  of  the  age  of  sixteen  '*r 
■upwards,  shall  have  .-cxual  intercourse  together,  having  knu'.vi- 
edge  of  their  consanguinity."  Here,  as  'inder  the  seeoml  elaiK' 
of  the  statute,  the  crime  is  joint.  The  parties  must  have  iutii. 
course  together,  with  knowledge  of  their  consanguinity. 

The  indictment  in   this  case  is  on   the  second  clause  of  tic 


IJAUMKR  V.  STATE. 


357 


shitiitc  and  (•(Hisi't^ueiitly  we  mrd  only  decide  iii)on  the  proper 

,„'i>tnu'tiiia  (iP  thiit  jKirt  of  the  section.     Tliat  its  ])ro])er  con- 

■  11  is  that  wliii'h  we  liuve  already  indicated,  we  think  is 

,.,„ijal)ly  clear,  n[>iin  the  lan:,niage  of  the  statute  itself. 

^reiire  referred  I'V  counsel  fur  apjtellant  to,  and  cite  in  su])- 
iioitof  this  construction  of  the  statute,  the  fnjlowin;^  authorities: 
j';,!,.  Si-  '"!•■. nes,  sees.  TOi'.  T-'l  and  7;51;  77it'  Sf(/f,  r.  /Ji/roii, 
:'-iMo., -lo;  .\nhler.  TJir  Sintr,  ±1  ( )hi,,  St.,  ."iil;  Drhnirtj  c. 
JkPcoph'y  10  ]\rich.,  '1A\.  In  the  last  iianietl  case,  the  inforin- 
itiiiinvii?;  (»M  ;i  statute,  the  lani;'nap,'e  of  which,  so  far  as  it  allected 
itca-c  in  jiid.LTnient,  was  as  follows:  '•  If  any  man  and  wmnan, 
,;  •  !ii',:';j;  inariied  to  each  tither,  shall  lewdly  and  lascivit)usly 
avdciatc  iuid  cohal)it  together,  *  ■'  eveiy  suci,  person  shall 
■f  piini.dit'd,"  etc.  It  was  held  that  tlic  oU'ense  was  joint,  and 
t'i;itli(ith  uf  the  parties  must  he  jj,MiiIty,  or  neither. 

The  iiidictiuent  in  the  case  which  we  are  considering  alleges 
,:i!v that  the  defendant  "did  uidawfnlly  have  sexual  interconrso 
■;it!i Ills  step-mother,  Augusta  Haunier,  then  and  there  knowing 
•'.•■-iiid  Augusta  llaunn  r  to  he  his  step-mother."  Such  an  allega- 
;;i;iiif  the  crime  niiglit  have  lieeii  good,  according  to  our  view  of 
:!:c  statute,  hail  the  indictment  heeu  against  a  step-father,  or  a 
;*ent,  where  the  guilty  i)articipation  of  the  other  party  to  the 
;rt  i>  not  !i  ueceMsary  ingredient  of  the  crinu',  Ihit,  as  hetweeii 
f;ip-iiuitlier  ami  step-son,  where  the  crime  is  joint,  and  where 
l«it!i  must  lie  guilty,  or  m-ither,  we  thiidc  it  is  fatally  defective. 

It  follows,  from  what  has  already  iieen  said,  that  the  court 
(Twl  in  >ustaining  tlu;  demurrer  to  the  answer  of  the  defendant, 
stting  up  the  ac(piittal  of  Augusta  I'aumer,  the  step-ni.;t!icr, 
liidotlior  ]iarty  to  the  alU'ged  joint  crime. 

Ill  additiuii  to  the  ahovo  cited  authoi'ities,  we  may,  on  this 
1 'lint,  refer  to  the  following:  Stiit.i;  r.  Z'v///, '2  Dev.,  ,■)*»;>;  T/ie 
Ivit'j  r.  Till'  I iilinhitdiits,  di-',.,  lo  East,  -111;  Tiirp'ui  0.  The 
V4.4  lilackf.,  72. 

hi  tlie  last  named  case,  wdiich  was  a  prosecution  for  riot  against 
tinvopersims,  upon  the  trial,  two  were  acipiitted,  and  (uie  found 
j'iiilty.  It  was  held  that  uixui  this  verdict,  no  judgment  could 
V'l'rrinouheeil  against  the  defendant  found  guilty.  In  the  case 
•ilhlanri/  r.  Tlw  l\  i>pl,,,supi'<i^  it  was  held  that  the  parties  must 
utli  be  joined  as  defendants  in  the  same  informaticm,  hut  we  do 
Uitcare  to  lay  this  down  as  law.     Whether  they  be  prosecuted  in 


:   tl 


35S 


AMERICAN  CRIMINAL  REPORTS. 


tlic  sftine  iiidictincnt  or  not,  tlic  crime  must  l)o  charged  as  a  joint 
crime.  Tliey  may  be  tried  sei)arately,  and  one  may  bu  convicted 
and  sentenced  before  tlie  otlier  is  tried.  If  one  lio  triud  ainl 
ac(|uitted,  the  other  )nust  bo  discliar_jj,-ed;  and,  it  is  said  in  tip 
Mielii^i^'an  case,  tliat  if  one  be  tried,  ci>uviete<l  and  senteiiral. an,! 
tlie  other  tried  and  acquitted,  tliis  will,  ipsofacU),  render  tliu  lii'«t 
conviction  void. 

The  judi;'ment  is  reversed,  and  cause  remanded,  with  iiistnic. 
tions  to  quash  tlie  iiidictment,  and  dis(diar«,fe  the  defLiidant. 


I 


ni 


PEOl'hK  'OH.  AVi  I.SOX. 

(49  Cal.,  i:!.) 

Insanity. 

Wlicro  iiisiinity  is  Yi\wA  upon  as  ;i  d.'fi'nsn  to  a  criminal  (liiH';;!',  llic  Imnlni  <.{ 
jiroof  is  on  tlic  ivspoiidrnt  to  cstalilisli  his  insanity  ill  llic  iinieof  tiieiut; 
Iiitt  sm-lv  in.-;niity  ni;iy  lie  (•>iaMisliiMl  liy  a  t'lviKindcninci' nf  trstinmnyiiiil 
is  not  ri'unii-ed  to  lie  proved  beyond  a  reasonalile  doiil>t. 

Ey  tuk  Court.— In  sain  ty  of  tlie  defendant  at  tlie  time  of  tliu 
commission  of  the  allci^ed  oilense  was  one  of  the  dei'eiisi's  n. 
lied  upon  at  the  trial.  On  this  ])oint  the  court  eliari;e(l  llmjiiiv; 
'•  You  cannot  ac(|uit  him  on  tlie  ground  of  insanity,  heciuisi' a 
doul)t  may  arise  in  your  minds  on  the  (|uesti<)n.  I  lis  iii.-;uii!v 
must  be  made  tt>  ajjpear  to  you  beyond  a  reas(.)nal)le  doiilit." 
fc>ome  of  the  authorities  hold  this  to  be  the  correct  rule;  but  i:i 
this  state  the  contrary  rule  has  been  settletl  by  several  dccisimis 
of  the  court,  the  latest  of  whicdi  w.is  in  the  case  of  the  Vi'.opk  <'. 
MvDonndl,  ■il  C-al.,  13-k  In  that  case  we  held  that  wliile  tlic 
burden  of  proof  is  on  the  defendant  to  establish  the  insanitj,  it 
is  sufficient  to  prove  it  by  a  ])rc^])onderance  of  evidence,  in  other 
Avoi'ds,  that  "insanity  must  be  clearly  established  by  satisl'actoiy 


evidence 


1  " 


Judgment  reversed,  and  cause  remanded  for  a  new  trial. 

"Wam.aci:,  Vj.  d.,  concurring.  As  to  whether  a  iirisoiicr  iv!y- 
ing  upon  the  defense  of  iiisunity  at  the  time  cd'  the  (•(iinmi.'^.-ii^ii 
of  the  act  charged  against  him  as  a  crime,  may  rest  u]"'!' 
mere  i>vepouderating  evidence  of  the  fact  of  insanity,  or  iiiuti 


T""!!-^^ 


SULLIVAN  t'.  TEOPLE. 


359 


(     ?  7 
( 


il 


,„)  further  and  cstaMisli  liis  alleged  iiisunity  l)cyond  a  rcason- 
iiljle  doubt,  is  a  (question  111)011  which  tlie  authoi'itie.s  arc  in  coii- 
lliet.  Ill  ^'i*^\^'  *^f  t^^^  notorious  facility  with  wliich  this  dofcnso 
ij  often  availed  of  to  shield  the  i^uilty  frcMu  just  punishment, 
IslioiilJ,  if  the  matter  were  res  in/ci/ni  in  this  court,  he  inclined 
to  adopt  the  latter  rule.  ]>ut  in  the  case  of  T/ie  l*et>jffe  v.  Cojj'- 
j„(M,24  Cal.,  2;50,  the  question  was  thorou^ddy  considered  here, 
and  it  was  held  that  infinity  miu,dit  Iwj  established  in  a  criminal 
rtju  by  the  same  amount  of  evidence  hy  which  it  mii^ht  ho 
I'-tiiblislicd  in  a  civil  action  involving  the  question,  that  is,  hy 
iiiureprt'iionderating  evidence;  and,  njjon  the  authority  of  that 
case,  I  concur  in  the  judgment  in  this  case. 


SULMVAN   vs.    PkoI'LE. 

(:U  Mich.,  1.) 
Insanity :    rrdclicc  —  lioiKirk  hi/  court  in  jinmncc  ofjiirij. 

Evuknce  Unit  tin-  rcsiicnidi'iit  wiis  iiisaiu'  "on  tlic  iii>;lit  ol'  tlu?  tliiid  or  Iho 
mnniiiif,' of  tin'  fourth  of  .Tiuiuiiry,"  wlion  tliis  i.-!  all  tin'  cviilrncc  th;it  Ik;  wum 


pvor  msii 


lie,  iiml  whoro  thcn^  liutl  liccn  I'vidcnec!  tliiit  lie  w 


IS  never  insane, 


has  no  tendency  to  prove  that  he  wiis  iiisiuic  on  tin;  nioriiin;^'  of  the  second 
of  Jiuiiiary. 

k  liy  the  court,  iulverse    io  the  iirisoiur  in  the  jiresenee  of 


ler  reillill 


on.^idered  on  writ  of  e 


though  i(  were  a  jiart  of 


An  iiiii)ro[ 

tlicjin-; 

chartre. 
'J'liowiirt  has  no  riyiit,  to  say  in  the  proseni'O  of  tiio  jury  that  it  was  th(!  <luty 

of  the  jirisoner  to  l)riny  forward  iiis  (h;feusi;  on  his  preliminary  examination. 

EuKoii  to  lIoiKjIitoii  CintMiit. 

F.  J/.  Bnulij  ami   Chq'iii"Ht  /A'/vy  cO  I/ai''is,  for  |ilainti(l:' 


in  error. 
haac 


Miti'.sto)!^  Attorney  (u'ucral.  For  the  peuiilc. 


Ciii!isTi.\N(^v,  .1.  The  ])laintifl'  in  error  was  tried  in  the  circuit 
court  for  the.  cuiinty  of  Houghton,  upon  an  in i'oi'ination  charg- 
ing,' him  with  havii\g,  on  the  l(»th  day  of  December,  ls7;>,  at, 
etc.,  wilfully  and  feloniously,  and  (»f  malice  aforethought,  assault- 
ed, beiitcn.  and  wounded  one  William  W.  Perry,  with  the  intent, 
liim,  the  said  I'erry.  then  antl  there  t:»  kill  and  murder. 

The  defendant  below  (plaintill'  in  error)  was  convicted,  and 
sentenced  to  the  state  prison  at  Jackson  for  ten  years. 


)'  ^' 


lu:^ 


SCO 


AMRRTCAN  CRT^FINAL  RErORTS. 


"Tliorc  was  evidence  "  (us  appears  1>y  tlic  bill  of  o.\«'ptioii>^) 
"  tend iiip^  to  show  that  respoiidoiit,  on  the  iiiorniiig  of  .laiiuiirv 
2,  1874,  confessed  Iiavini;^  assaulted  eonii)laiiiini''  witniss  in  ti||> 
manner  eharij^ed  in  the  information."  And  for  the  ])nr}M)st>,  as 
it  would  seem  from  the  reei>rd,  of  avoidiui^  the  foree  of  this  I'nn- 
fessioii  !is  evidtniee,  the  defendant  seems  to  have  unck'rtiila'ii  tn 
■jirove  that  he  was  insane  when  he  made  the  eoiiiVssidii  — ii,,t 
when  he  eonimitted  the  oflense  —  ami  several  eNeeptimis  wore 
taken  to  the  judi!;e's  ehari;"e  as  to  the  burden  of  proof  upon  that 
(piestioii,  the  nature  of  the  evidence  ^-iven  upon  it,  and  to  a  clmise 
in  the  chari^e  inqtlyinif  that  defendant  must  conclusively  prove 
the  insanity. 

r>nt  we  think  all  <juosti()ns  connected  with,  or  ^t^^rowiii^' out  of 
tliat  of  in.-iuiity,  are  outside  of  the  case  as  i)ri.'sented  tipuu  tlii- 
record. 

The  1)111  states  that  "there  was  evidence  <^\\vu  on  tlio  tria! 
tendin;^  to  show  that  res])oiident  was  insane  on  the  ni^-Jit  of  tlie 
tliird  or  the  niornini^  of  the  fourth  of  January,  1S74;  a  1  tliere 
was  evidence  tending-  to  show  tliat  he  was  never  insane."  Now 
tlie  confession  which  the  evidence  tended  to  show  was  inailc  dii 
the  moi-niiii;' of  the  seconil  of  .lanuary,  and  the  record  does  iint 
show  that  there  was  any  evidence  tendini!;  to  show  that  defoinl- 
ant  was  insane  at  tlu;  time,  nor  until  the  ing-ht  of  tlie  tliinl  »]• 
morning- of  tlie  foui'th;  and  the  cle;ir  imjdication  from  the  n'oinj 
is,  that  there  was  i:-)  such  evid(>nce.  It  is  theivfore  (piitr  iiiiiii;i- 
Icrial  U])on  this  record  what  rulinj^s  the  court  may  have  iiiaile 
(•ouiU'ctt'<l  with  the  (piestion  of  Insanity.  They  cannot  hi'  ;i>- 
i-igned  as  error  upon  this  I'ctiord. 

J>ut  the  defendant  set  np  in  defens(\  and  intro  liiccd  cviilciuo 
tendiii;;;  to  ])rove  an  (iIUh.  Ihit  niiou  his  pivliminarv  cMiiniiia- 
tiou  before  the  exaniiniiiir  man'istrate,  he  oU'erctl  iin  I'viiKniiL 
whatever. 

As  to  ])roof  of  the  ^/ ///>/,  it  is  objected  that  the  court  iiistnietcil 
the  jury  that  it  m\ist  be  ])roved  conclusively,  or  beyond  a  diml't. 
to  constitute  a  defense.  Thoui^li  such  hin;^uai'-c  was  incidcntiilly 
nsed  in  one  ]>art  of  the  char<^e,  I  am  strony-ly  inclined  to  think 
such  was  not  the  fair  meanini;  of  the  Avholc  charge  npnii  tlii- 
i.ubjcct  when  taken  to^-ether.  Tlu;  whole  ehai'^^^e  upon  tlii>  point, 
after  ]>roperIy  definiiii^  an  r/ ///>/,  was  this:  ''"When  such  a  ilcfen-e 
is  made  and  proven,  it  is  conclusive.     It  is  the  best  defense  diiit 


SULLIVAN  V.  PEOrLE. 


301 


m. 


can  be  interposed.  It  leaves  no  (lonl)t  of  the  innocence  of  the 
iiiU'ty  accused,  but  it  must  be  Siitisfiietory.  Tliere  must  l)c  no 
(loiilit  uIxHit  it,  or  else  you  cannot  ijive  it  iiiucli  credence;  so  that 
it  l)ec'omos  very  iinjiortant  in  connection  with  space  and  distance. 
You  must  he  satisfied  that  the  time  and  s])ace  correspond,  and 
itlieiiii^  proved  satisfactorily  to  yon,  and  l)eini:;-  foumi  to  ho  rea- 
i:riiiiil»le  with  time  and  distance,  tlien  it  is  conclusive.  Then, 
iifter  coaimentiui!,'  n])on  the  ])ro(»f  of  insanity,  which  is  not  here 
iiKiiicstiuii,  lie  concludes  his  charii^e  as  follows:  "  Uiit  it  is  your 
(liitv,  t,'ciitlemen,  to  take  the  whole  case,  under  the  evidenci;  for 
the  pi.'oj)U',  and  for  the  defense,  and  weii^h  it  carefully — ^cvery 
ti'illiii<,M'ircumstance,  every  fact,  remote  or  ])ro.\imate,  <j;ravc  Oi 
triviiil  —  all  these  go  to  make  uj)  the  evidence  in  this  case.  If 
vdii  helieve,  from  all  the  facts  and  circumstances  in  this  case, 
tliiittlic  jieojile  have  jiroven  their  cast; — -  for  the}'  have  the  afHrm- 
ative,  treiitlemen  —  and  it  is  their  duty  to  convince  you  hevond 
11 1't'iis^onahle  douht — if  they  have  sustained  their  chariije,  your 
VL'i'dict  will  l)efi^uilty,  I'ut  if  there  should  remain  in  your  minds 
a  well  founded,  reasonable  doubt  as  to  the  i:;uilt  of  the  re.-]>ond- 
ciit,  you  must  i^ive  him  the  benejit  of  that  doubt.  Entertaininj^ 
siieli  a  doubt,  your  verdict  will  be  not  t^'uilty,  and  you  mur-t  ac- 
quit.'' 

This  last  ])ortion  of  the  char^-e,  if  understood  by  th(!  jury  as 
(xtendini:;  to  the  (|UCstion  of  an  nHhi,  as  I  am  incliiu'd  to  think 
tlioy  luust  hav(!  understood  it,  would  have  corrected  the  error  of 
tlie  previous  statement,  that  "  there  must  be  no  doid)t  about  it;" 
iiii'l  tlie  doubt  referrecl  to  would  be  understoo<l  as  a  reu-oiuvblo 
iliiiilit.'' 

In  a  criminal  case.  ho'Aever.  wi'  nnist  ni>t  otdy  see  from  tlio 
ivi'iinl  a  probability  that  the  defendant  h:*s  not  I>een  injrired  l)y 
iniy  tMTiiueoiis  expre-^-ioii  in  tlie  eharije,  -iiL  wi'  must  bi;  satisHoil 
I'OVdnd  any  HMx'nable  donbt,  that  ho  could  not  biivi'  been  .>o 
injured. 

AVe  luvl  not,  however,  determine  this  partie\ilar  (piestion  in 
tliis  case,  as  there  is  anothiT  t'rmr  in  the  record  f.ir  which  the 
juilijiiieul  must  lie  reversed;  and  this  particn'.r  tjue-tiou  will 
lint  he  likt'ly  to  ari.-e  in  the  same  form  upon  ji  new  trial.  The 
iwml  states  that  dnriiiii;  the  elo>inir  riLrument  for  the  i)rosecu- 
timi,  Mr.  ('hainlhr.  (uie  uf  the  counsel  for  x\w  peojtlo,  com- 
uieiitcd  adversely  to  the  respondent  u])on  the  fact  that  he,  the 


1 

WMl\  k 

'If 

i 

■      i'''f, 

n 

t                                  , 

•J' 

iSf 

'  .  1    , 

;  11' 

J 

Vi 


H«' 


^1 


302 


AMEiaCAN  CRIMINAL  REPORTS. 


respondent,  did  not  interpose  tlio  defense  of  an  alihi  on  tlic 
exiiiniuiitiuii  before  tlie  niii^istnite,  it  bein^  a  iiiiitter  of  roconl 
and  tlie  fact  a[>peariiiij^  tliat  tlie  respondent  oilered  no  dofoii^c 
before  tlie  e.xaiaiiiiii;^  nia<i;istrate.  The  eonmient  of  eouiisol  fur 
the  prosecution,  Ijeini^  o]))eeted  to  liy  respondent's  eiiunst'l,  tlie 
court  overruled  the  objection;  and  in  the  presence  of  the  jury, 
remarked  as  follows:  "  It  Is  tl>e  duty  of  a  res|)ondent,  m-Iiuu  ho 
has  a  _i;'ood  defense  in  tlie  nature  of  an  dllhl,  to  inter[)oso  tlmt 
defense  at  the  earliest  moment  [)OHsiblc;  and  a  respondent  sIkiuIiI 
oiler  his  defonse  of  an  (ilibl  Itefore  an  examininL?  maj^istrate,  with 
a  view  to  savint-'  himself  anxiety  and  trouble,  and  the  people  tlio 
great  expense  of  a  trial." 

Now,  while  for  myself  I  thiidc  it  may  sometimes  de])end  upon 
the  circumstances  of  the  case>  whether  tlie  nei^lect  of  a  ]tri.-()iior 
to  interpose  such  a  defense  bef<n'e  an  examining  ma^'isti'ate  ,^h;ill 
be  allowed  to  l)e  commented  ujmn  aj^ainst  him,  and  ci>nsiderod 
by  the  jury  (a  ])oint  upon  which  my  l)retliren  reserve  any  opin- 
ion),  yet,  1  think  it  <|uite  clear  the  jud<^e  went  too  far  in  the 
present  case,  when,  in  the  presence  of  the  jury,  and  thererore 
haviiii^  the  same  ellect  as  if  addressed  to  them,  he  used  the  luii- 
guage  above  cited.  It  is  easy  to  see  that  there  may  have  heou 
good  reasons  why  the  defendant,  however  innocent,  should,  iis 
matter  of  prudence,  have  neglected  to  go  into  the  evidence  of 
the  alibi  beft)re  the  magistrate.  It  dcjes  not  even  a])jH'!n-  tluit 
the  witnesses  sworn  on  the  trial  were  present  or  attainable  at  the 
examination. 

The  judgment  must  be  reversed,  and  a  new  trial  awarded. 

The  other  justices  concurred. 


Wamcku  vs.  SrATE. 

(r.'J  Ala.,  :{7G.) 
Buuoi.Aitv:    Chimnoj. 

'  On  an  iinlicimt'nt  for  burghiry,  ontoring  through  tlic  chinnioy  of  a  cotton  liouso 
is  11  bn'iikiiig. 

JuuGK,  J.     The  indictment  in  this  case  was  for  burglary,  ami 
charged  the  defendant  witli  breaking  into  and  entering  the  cut- 


STATE  V.  rOTTS. 


363 


ton  liouRC  of  Arcliie  KidiDlson.  Tlie  evidence  tended  to  show 
that  the  dcl'eiidiint  entered  tlie  liouse  l>y  i,'()in_i^  down  tlie  eliini- 
nev.  mid  tluit  after  tlius  entering,  lie  ^ot  out  of  tlie  lioii.se  tliroiigli 
nwimlnu-,  by  breaking  the  fasiteiiing  of  the  window  from  the 
iiinide  of  the  house. 

It  in  iiigenioiiisly  conten<led  by  counsel  for  the  defendant,  that 
to  CDiistitute  the  crime  of  burglary,  under  section  \j{]'X>  of  the 
lluvi-i'd  (\>(le,  there  should  be  a  breaking  into  and  entering  one 
(if  tlio  houses  described  in  said  section;  and  that  as  the  eviilencc 
in  this  ease  showed,  that  the  defendant  entered  and  broke  out  of 
the  liniise,  he  was  not  guilty  of  the  oilense  charged. 

]ly  the  common  law,  descending  the  chimney  of  a  liouse  is  an 
actual  hivaking,  as  much  so  in  legal  ell'ect  as  would  be  the  forci- 
ble breaking  into  a  house  by  any  other  means.  3  CJreenl.  Ev., 
^  7(1.  And  such  was  recognized  to  be  the  law  by  this  court  in 
Dmohoc  r.  The  State,  30  Ala.,  2Sl. 

Ill  that  case  the  defendant  got  into  and  attempted  to  descend 
the  chiiiiuey  of  a  storehouse,  but  was  arrested  in  his  descent, 
Avheii  near  the  arch  of  the  iireplace,  by  the  sinallness  of  the  a])er- 
tiiro;  aiitl  he  became  so  tight  and  fast  that  he  could  not  be  ])ulled 
out,  either  at  the  top  of  the  chimney  or  at  the  lire2)lace  below, 
anil  till'  chimney  had  to  be  jnilled  down  to  e.\tricate  him.  Al- 
tlumgh  the  defendant  did  not  enter  any  room  (d'  the  house,  ho 
was  adjudged  to  have  been  guilty  (»f  the  burglary.  The  court 
held  that  a  chimney  is  a  necessary  opening,  and  needs  protection, 
as  a  part  of  the  dwelling  house,  it  being  as  much  closed  as  the 
nature  of  tilings  will  admit;  and  this  decision  seems  to  have 
liei'u  well  fortified  by  the  numerous  authorities  cited  in  tlio 
opinion  t)f  the  court. 

There  is  no  error  in  the  record,  and  the  judgment  of  the  cir- 
cuit court  is  alHrmed. 


Statk  vs.  Potts. 

{Ih  N.  C,  1'20.) 

DuKGLAHv:    DuvUlng  house. 

If  a  paii  of  a  storolionsi',  I'Oiiiiniinieutiiii,'  with  tlic  part  iisoil  as  a  Rtoi'O,  Lc  slept 
ill  hiiliitiially  liy  tlio  owner  or  by  oiu;  of  liis  family,  although  he  sleeps  there 
to  protect  the  i)reiiii.ses,  it  is  his  (.Uvelliiiy  house. 


304 


AMERICAN  CRIMINAL  REPORTS. 


m 


m 


?■■(»' 


If  a  person  wlio  ^l(•(■|ls  in  ii  jiiirt  of  u.  store  Imnse  roinniiniieiitin},'\vitli  tlii'  \r,\\i 
used  us  ;i  store  is  not  tiie  owner,  or  one  of  iiis-  fiiniily  or  servinils,  Kiit  i-:  I'ln- 
pK/Vi'tl  to  sleep  tliere  solely  for  the  purpose  of  prott'Ctin^f  tlie  i)reiuisi's,  lie  |^ 
only  ii  Wiitelmiiin,  iiml  tlie  store  is  not  adwellinj;-  lioiise. 

TtoDMAN,  .r.  Tliore  ins  no  8tiitii'(j  in  Ndi'tli  ("ai-olinii  (■li;ini,qii(>' 
the  (Mmmiuii  law  (Icliiiition  nf  Ijiir^liiry,  wliicli  is:  Tin"  lireuk- 
iiio;  iiiul  I'litc'riiio;  of  //h;  thi'iUhn/  Iiokkc  ttf  iiiioflirr  in  the  uii^iit 
tnnt',  with  intent  to  coniniit  ii  felony  tlierein.  The  (jnestioii  in 
tliis  ease  is:  AVas  tlie  lionse  into  wliicli  the  |iri>uuer  hroke  iiiul 
ontere*!,  tlii'  (InuUhuj  luxixc  of  tiie  j)roseeutor,  I)avi>?  Tlio 
house  helonjo-ed  to  Davis,  and  was  used  as  a  store;  a  small  >\\\w^ 
was  ]iartiti(»ned  oil'  from  the  sloriM'oom  for  a  iKsd-i-ooin,  ami  it 
had  heen  oeenpitMl  as  such  re:::^uhirly  for  ahout  four  years,  either 
hy  J)iivis  or  l>y  some  clerk, or  other  ])erson  l»y  his  lieeiise.  it  was 
tilept  in  on  the  nii^ht  of  the  hreakiui^,  ami  liad  heen,  on  every 
uiijjht  f(»r  a  nnnitli  hefore  that  nio;ht,  liy  one  Lanih,  who  was  oni- 
l)loyed  hy  Davis  to  sleej)  there  for  ilie  iiurpose  of  jirotectini;  tlio 
jtreniises.  Land)  was  not  a  niend»erof  the  family  of  Davis,  nur 
employed  hy  him  otherwise  than  as  stated. 

The  Attorney  (ieneral  relies  on  the  Sluti'  i\()iifhni\1'l  N.  (',, 
598.  That  case  can  only  he  distinujuished  from  the  presiut  liy 
the  fact  that  Ilarriss  (the  |)ers<»u  who  slept  in  ('nnninn'hanrti 
store)  was  a  clerk  of  ( •unnin,o;haiU  and  hoarded  in  his  rainily. 
It  was  evident  that  he  slept  in  the  store  for  the  ]trotection  of  the 
])remises.  AV^e  do  not  donht  the  decision  in  that  case;.  The  dil'- 
fercnces  hetween  that  case  and  the  present  may  seem  very  .-li^ht, 
vet  if  thev  he  su<*h  as  are  recojriii/ed  hv  the  authorities  frnu 
■which  we  derive  the  law  on  this  suhject,  we  are  hound  to  reeoi;- 
uize  them  as  distinifuishini^  the  two  cases,  ("onsiderim;-  the  va- 
rious ways  in  which  houses  nniy  he  occupied,  it  is  not  the  fault 
of  the  law  if  the  line  of  sei»aratiou  is  thin,  or  even  artilieiiil. 
The  followiuf^  (piotations  are  all  from  2  Kast  I*.  ('.,  pp.  IHT,  r*'\ 
It  is  clear  that  if  no  ])erson  sleejts  in  a  house  it  is  not  hurii'hiry 
to  l)rcak  in  it.  ITdlUwd^ti  Ciisc  \n  .Iir<ni'ii\-<  (\is,„  all  the 
judges  ao'reed  that  the  fact  of  a  servant  havini^  slept  in  a  haru 
the  nii;ht  it  was  hrokeii  oi)en,  and  for  several  nights  hel'uri',  he- 
ing  ])ut  there  for  the  ])urj)ose  of  watchinij  against  thieves,  niiulo 
no  sort  of  dillerence  in  the  <piestion  whether  hiirglary  or  not. 
So  a  2X>rtti'  li/onj  hi  a  warehouse  tv  wdtch  (joat/.s,  in/iich  is  onhj 
for  a 2)artlciil(C/' pitfjwse,  doo6  not  make  it  a  dwelling  house. 


STA'I'l':  r.  rOTTS. 


3C5 


111  Ftiller^s  C<(st\  tlio  lioiist?,  wliidi  wiis  a  new  one,  was  fin- 
islicil  except  the  jiuiiitiiif;  and  ;;la/,iii;ii^,  and  a  worUiiuvn  employed 
1)V  tlie  owner  f<lept  in  it  for  the  jdirpose  of  pruteetioii;  hut  no 
part  of  the  owner's  fiiiuily  had  taken  ])()8i<esriion  of  it.  1ft  hf, 
not  a  dwi'lliii,i,'  Iioiise. 

Ill  Ildrrixs"  Cii.sr,  it  a|»pearc<l  tliat  the  jiroseciitor  liad  lately 
taken  the  house,  and  (»ii  the  nii^ht  of  the  oU'eiist',  and  for  six 
nights  hefore,  had  pro('ure(l  two  hairdressers,  noiu-  of  Ins  own 
family,  to  sleep  there  for  the  purpose  of  taking  care  of  his 
gddds  !ind  nierehandise  therein  depctsited;  but  he,  hinist'lf,  had 
never  sie|>t  there,  nor  any  of  his  family.     //( /7,  not  a  dwelling. 

In  J)in'i,s'  i'(/.vr,  one  I'earee  owned  the  house,  hut  residetl  at  a 
distant  plaee.  It  was  not  inhahited  in  the  daytime,  hut  a  ser- 
vant of  the  owner  slept  there  eonslantly  for  about  three  weeks, 
golely  for  the  j)urpos(;  of  protectiiij^  the  furniture  till  a  tenant 
cmild  he  jn'oeured.     //i/if,  not  a  dwelling  house. 

It  seems  from  these  eases,  that  if  i)art  of  a  storehouse,  eom- 
imiiiieating  with  the  ])art  use<l  as  a  store,  be  slept  in  habitually 
by  the  owner,  or  by  one  of  his  family,  although  he  sleeps  thero 
to  jiroteet  the  ])reinises,  it  is  his  dwelling  house.  If  the  ]>erdoii 
who  sleeps  .iiere  is  not  the  owner  or  one  of  his  family  or  ser- 
vants, l»ut  is  employed  to  sleep  there  solely  for  the  pur[)osi>  of 
pniteetliig  the  premises,  he  is  only  a  watchman,  and  the  store  is 
not  a  dwelling  house. 

The  distinction  is  not  altogether  arbitrary  or  without  reason. 
To  break  into  a  house  where  the  proi)rietor  or  any  of  his  family 
nleep  is  apj)arently  a  more  heinous  otleiise  and  calculated  to  pro- 
duce greater  aitpreheiision  and  alarm,  than  to  break  into  a  huuso 
occupied  ])rimarily  for  business,  although  a  watchman  is  em- 
idoyed  to  slcej)  tlii-re.  It  is  eoiiipetent  for  the  legishiture  to  pun- 
ish the  latter  olleiiso  in  any  manner  otherwise  than  capital  that 

I  have  not  seen  th      ' 


l)rop 


».>' 


any  state  such  an  oH'ense  is  eapital,  as  it  would  be  in  this  state 
if  held  to  be  burglary.  In  Xew  York  it  is  burglary  by  statute, 
l)Ut  it  is  jiunishable  only  by  imprisonment  in   the   penitentiary. 

As  oiir  opinion  on  this  (piestion  entitles  the  ])risoner  to  a  new 
trial,  it  is  unnecessary  to  consider  the  other  (j^uestions  raised  on, 
the  record. 

Tliure  is  error  in  tlie  judgment  below,  which  is  re'i"  sed.  Let 
this  u[»inion  be  certilied  to  the  end,  etc. 


^      1    1 


I 


Tku  Clkiam: 


Jiuhjincnt  reversed. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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1.0 


1.1 


11.25 


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^^  ^A.^'^ 


23  WIST  MAIN  STMIT 

WIISTIR,N.Y.  145M 

(716)t71-4S03 


366 


A^IERICAX  CRIMINAL  REPORTS. 


"Woodward  vs.  State. 

(54  Ga.,  lOG.) 

BunoLAiiY:    Intent  —  Evidence. 

Evidence  that  the  respondent  entered  the  prosecutor's  house  between  twelve 
and  one  o'clock  at  nigiit  by  riiising  a  window  of  tiie  room  in  which  the 
prosecutor  and  his  wife  were  sleepinjr,  and,  when  discovered,  went  out 
throng'h  the  wimlow,  tliere  beinjr  money  and  Hotliing  in  the  room,  is  snfti- 
cient  to  sustain  n  conviction  for  burj,dary,  although  it  does  not  appear  tlmt 
respondent  stole  anything. 

The  intent  with  which  a  prisoner  breaks  and  enters  the  dwellinfjr  house  of  an- 
other m  tlie  ni;jht  time  is  a  question  of  fact  for  the  jury  under  all  the  factn 
and  circumstances  of  the  case. 

"Warxkk,  C.  J.  The  (lefendant  was  indicted  for  the  offens^o 
of  "burglary  in  tlio  niglit  time,"  and  on  trial  thereof,  was  found 
guilty  by  tlie  jury.  A  motion  was  made  for  a  new  trial,  on  tlio 
ground  that  the  verdict  was  contrary  to  law,  contrary  to  the  evi- 
dence, and  without  evidence  to  support  it,  which  motion  was 
overruled  by  the  court,  and  the  defendant  excej>ted.  It  appears 
from  the  evidence  in  tlio  record  that  the  defejidant,  between  tlio 
hours  of  twelve  and  one  o'clock  at  night,  raised  the  back  windo-v 
sash  of  the  prosecutor's  dwelling  house,  in  which  he  and  his 
wife  were  sleeping,  propped  it  up  with  a  stick,  and  ejitered  tlio 
room  through  the  window,  and  when  discovered,  went  out  at  tlie 
window,  was  pursued  and  caught.  There  was  money  and  cloth- 
ing in  the  room.  Prosecutor  had  $100  in  his  vest  pocket,  liang- 
ing  on  the  l)od  post,  but  it  does  not  appear  that  the  defendant 
stole  anything. 

Burghiry,  as  defined  by  the  code,  is  the  breakijig  and  entei-- 
ing  into  the  dwelling,  mansion  or  storehouse,  or  otiier  place  ot 
business  of  anotlier  where  valuable  goods,  wares,  j)roduce  or  any 
other  articles  of  value  arc  contained  or  stored,  with  intent  to 
commit  a  felony  or  larceny:  Code,  sec.  4;3'^0.  The  defendant 
is  char-i-ed  with  having  Itroke  and  entered  the  house  witli  intent 
to  commit  a  larceny,  and  tlie  point  made  is,  that  tlicre  is  no  evi- 
dence that  such  was  the  intenti(»n  of  tlie  defendant. 

The  intention  of  tlie  defendant  can  only  be  ascertained  from 
his  acts  and  conduct,  and  it  was  a  question  for  the  jury  to  de- 
cide, under  the  facts  and  circumstances  as  detailed  by  tlie  cvi- 
dence,  what  was  the  defendant's  intention  in  breaking  and  enter- 


WATERS  V.  STATE. 


367 


ing  the  house  at  the  time  of  night  as  proved  by  the  prosecutor. 
Koscoe's  Crim.  Ev.,  3G7.    We  find  no  error  in  overruling  the 
motion  for  a  new  trial. 
Let  the  judgment  of  the  court  below  be  affirmed. 


Waters  vs.  State. 

(53  Ga.,  567.) 
Burglary:    Evidence. 


In  a  prosecution  for  burglaiy,  the  testimony  should  bo  such  as  to  the  time  when 
it  was  committed  as  to  exchide  all  reasonable  doubt  that  it  was  committed 
in  the  night  time, 
f  a  prosecution  for  burglary,  whore  the  evidence  leaves  the  time  in  which  the 
offense  was  conuuitted  exactly  balanced  Ijotwoon  day  and  night,  that  is, 
that  it  was  committed  witliin  a  period  of  about  forty  or  forty-five  minutes, 
one-half  of  which  was  day  and  one-half  of  which  was  nigiit,  the  defendant 
should  have  tlie  Ijcnefit  of  the  doubt  necessarily  arising,  and  ought  not  to 
bo  convictc<l  of  a  breaking  in  the  night  time. 

TuiiT,  J.  1.  Tlie  proposition  is  unquestioned,  that  in  all  crim- 
inal pro-^ocutions,  it  is  incumbent  on  the  state,  on  the  traverse 
trial,  to  sliow  affirmatively,  either  by  positive  testimony  or  other 
satisfactory  evidence,  that  the  defendant  is  guilty  of  the  ofl'ense 
charged  against  him,  or  of  some  less  crime  which  the  law  per- 
mits him  to  be  ftnind  guilty  of  under  the  indictment.  This  rule 
ain»lies  to  an  indictment  for  burglary  in  the  night.  It  was  but 
a  few  years  ago  that  this  otlense  was  ]>unishable  with  death,  or, 
l)y  special  recommeiul'ition  of  the  jury,  by  imprisonment  for 
life,  whilst  the  penalty  for  burglary  in  the  day  was  imprison- 
ment from  tliree  to  five  years.  Kev,  Code,  sees.  4321,  4322. 
Xow  the  penalty  for  the  former  is  i.iprisonment  from  five  to 
twenty  years;  for  the  latter  it  is  unchanged.  Would  it  be  going 
too  far  to  say  tliat  when  one  is  prosecuted  for  burglary  in  the 
night,  the  testimony  should  be  such  as  to  the  time  when  it  was 
committed  as  to  exclude  all  reasonable  doubt  upon  that  point, 
before  a  verdict  of  guilty  could  be  authorized?  If  there  had 
been  no  change  in  the  ])enalty,  and  that  was  yet  a  cai)ital  one, 
tlie  rule  would  scarcely  bo  doubted.  As  it  is,  the  maximum  for 
one  grade  is  twenty  years  in  the  penitentiary;  for  the  other,  five 
years. 


308 


AMERICAN  CRIMINAL  RErORTS. 


2.  Where  the  evidence  leaves  tlie  time  in  which  the  offense 
was  conmiitted  exactly  balanced  between  day  and  night,  that  is, 
that  it  wa.s  conmiitted  within  the  period  of  about  forty  or  forty- 
five  minutes,  one-half  of  which  was  day  and  one-half  was  night, 
the  defendant  t^honld  have  the  benefit  of  tlu  doubt  necessarily 
arising,  and  the  conviction  should  not  be  for  the  highest  grade. 
If  a  jury  reasonably  doubt  whether  a  defendant  1k3  guilty  uf 
murder  or  manslaughter,  that  doubt  is  resolved  in  favor  of  lil'o. 
So,  if  the  doubt  be  as  to  different  grades  of  manslaughter,  the 
defendant  should  have  the  benefit  of  it,  and  the  lowest  grade 
covered  by  that  doubt  is  to  be  found.  It  would  be  difHcult  fa 
limit  the  application  of  this  })rinciple,  and  we  think  it  should 
control  this  case.  The  chief  evidence  against  this  defendant  was 
the  fact  that  he  was  in  possession  of  the  watch,  which  was  taken 
from  the  house  several  days  after  the  bur<davv  was  committed. 
I  will  not  rennirk  upon  the  character  of  such  testimony,  whether 
it  is  always  sullicient  to  C()nvict,  for  the  authorities  are  somewhat 
in  conflict;  but  we  say,  that,  under  the  proof  in  this  ease,  we 
think  the  defendant  should  have  the  full  benefit  of  the  first  rule 

we  announce  in  this  decision. 

Juihjmcnt  reversed. 


State  vs.  McDonald. 
(73  N.  C,  ;5.1G.) 
BunoLAUY :    Cwifension  —  Erhlence  —  Imlktment. 

Evitloncc  that  on  tlio  morninfjof  Au<,nist  12th,  thoiirosooiitordisL'ovcivd between 
dayliglit  ami  sunrise  that  liis  house  hatl  been  l)roki'n  into,  that  the  Ivau-se 
was  on  a  public  street  in  a  town,  and  that  a  (hy  f,'o.)ils  box  and  ciiair  iiad 
been  plaeed  l)"neath  tlie  window  wlieri;  the  entry  was  etleeted,  is  sullicient 
evidence  to  be  submitted  to  the  jury  that  the  brealciny  was  in  tin.'  iiif.'lit 
time. 

There  is  no  nile  of  hiw  whieh  jirohiltits  a  prand  juror  }j:ivin<r  e\-ideiK'e  npiiiist  a, 
prisoner  who  is  being  tried  on  an  indictment  found  by  the  gi-and  juiy  of 
which  the  f^Tand  juror  was  a  member. 

Voluntary  confessions  are  admissilile  against  the  prisoner. 

When  an  oti'ense  is  made  of  a  higher  nature  by  statute  than  it  is  at  coniuion 
law.  the  indictment  nmst  conclude  against  tlie  statute;  but  when  the  pun- 
ishment is  tlie  same  or  less,  it  need  not  so  conclude. 

Ini)I(;tmi:nt  for  burglary,  tried  before  Bcxtox,  J.,  at  Jan- 
uary term,  1S75,  Cumherlund  Superior  Court. 


IS, 


STATE  V.  McDonald. 


369 


The  following  is  the  evidence  in  the  case: 

Thomas  J.  Green,  the  prosecutor,  was  iutrodnced  as  a  witness 
for  the  state,  and  testified:  I  am  captain  of  a  steamboat  plying 
between  Fayettevillc  and  AVilmington.  On  the  night  of  the  11th 
of  August,  1874,  my  dwelling  house  on  Person  street,  in  Fay- 
etteville,  was  forcibly  entered  by  prying  open  the  blinds  of  a 
window  on  the  east  side  of  my  house.  Tliese  blinds  I  had 
hooked  myself  the  evening  before,  and  left  the  sasli  up  for  air. 
On  tlie  next  morning  I  noticed  my  axe  lying  on  the  ground  un- 
der the  window.  A  goods  box  was  also  under  the  window  and  a 
chair  beside  it  so  as  to  form  steps.  I  noticed  a  sliglit  impres- 
sion or  dent  in  the  blinds,  and  signs  of  dirt  as  if  from  the  axe. 
Tliis  was  the  sleeping  room  of  my  little  daughter,  aged  twelve 
years,  and  of  the  nurse.  The  next  morning  I  found  these  were 
the  only  window  blinds  open;  they  were  pushed  to,  but  the 
wrong  one  iirst,  so  as  not  to  shut  up  tight.  Tlierest  of  the  win- 
dows were  all  closed  and  the  doors  were  all  locked.  I  liad  closed 
and  fastened  these  windows  myself  before  lying  down.  My  own 
family,  consisting  of  myself  and  wife,  and  five  children,  were  all 
at  home.  "We  also  had  a  guest  with  us  that  night  named  3i[rs. 
Carver.  I  was  the  first  one  to  rise  the  next  morning.  I  rose 
when  it  was  clearly  light,  between  daylight  and  sunrise.  I  lost 
my  vest,  which  I  had  Imng  ;ip  the  night  before  in  tlie  passage 
at  my  bedroom  door,  and  with  it  my  watch,  which  I  had  left  in 
my  vest  fob.  I  also  missed  my  overcoat  and  $50  in  currency. 
This  money  was  in  a  memorandum  book,  which  I  liad  handed  to 
my  wife  the  day  before.  I  found  tlie  book  on  tlieparlor  mantel, 
but  no  money.  The  watch  was  a  fine  gold  lever  watch,  with 
thick  huntini;  case.  It  v.'as  of  the  make  of  S.  J.  Tobias  &  Co., 
Liverpool,  Xo  32,oOS;  on  one  side  a  landscape  was  engraved  and 
on  the  other  a  sportsman  in  the  act  of  shooting  a  deer.  The 
hands  were  largo  steel  hands,  unusually  large,  which  I  had  put 
on  specially  to  see  at  night.  The  watch  cost  8180,  and  was  18 
carats  fine.  My  kitchen  was  connected  with  my  dwelling,  form- 
ing an  L,  and  is  sixteen  feet  from  mv  dwelling.  It  was  en- 
tered  the  same  night.  The  nails  over  the  window  sash  were 
broken  and  the  sash  was  taken  out.  I  think  I  would  recognize 
my  vest.  (A  vest  was  then  shown  to  the  witness.)  This  is  my 
vest  which  my  watch  was  in.  I  found  this  vest  in  a  trunk  at 
the  prisoner's  honse  on  the  11th  or  12tli  of  December  last.  The 
Vol.  I. -24 


5f 


-.  *. 


w 


'f& 


ot 


0 


AMERICAN  CRIMINAL  REPORTS. 


If' 


trunk  was  locked,  the  key  could  not  be  got,  and  the  officer  broke 
open  the  trunk,  the  prisoner  not  being  present.  We  found  in 
the  trunk  this  vest;  there  were  also  in  it  an  old  coat  and  pants. 
We  saw  another  trunk  there,  the  key  to  which  we  found;  it  con- 
tained the  regular  clothing  of  the  ])risoner.  I  certainly  recog- 
nize this  vest  as  the  one  which  contained  the  watch.  I  had  the 
prisoner,  Robert  McDonald,  arrested  by  an  officer  acting  under 
a  state's  warrant,  at  a  house  four  miles  from  Fayetteville.  I 
had  a  conversation  with  the  prisoner  on  our  way  to  town. 

The  state's  counsel  proposed  to  give  this  conversation  in  evi- 
dence. The  counsel  for  the  prisoner  ol)jectcd,  and  thereupon  iu 
reply  to  questions  asked  him,  the  witness  answered  as  follows: 
The  prisoner  seemed  anxious  to  communicate.  I  made  no 
throats,  but  spoke  mildly  to  him  and  used  no  harsh  words.  The 
prisoner's  counsel  then  remarked:  "  It  appears  no  threats  were 
used,  and  that  the  statement  was  voluntarily  made;  the  objec- 
tion is  withdrawn." 

The  witness  then  further  testified:  The  prisoner  then  stated 
that  he  bought  this  vest,  a  bucket  of  liutter  and  a  piece  of 
cheese  weighing  five  or  six  pounds,  on  Friday  night,  the  4tli 
of  December  last,  between  ten  and  eleven  o'clock  at  night, 
of  a  colored  man  named  AVilliam  llichardson.  I  asked  if  this 
was  all  he  bought.  lie  answered,  "  ves."  I  asked,  "llobcrt, 
did  you  ever  have  my  watch?"  he  sweretl,  "  Not  as  I  know 
of.  I  sold  a  watch  for  Williani  llichardson  in  September  last." 
lie  then  described  my  watch  nearly  as  accurately  as  a  jeweler 
would  have  done  it.  except  the  number.  I  think  the  prisoner 
knew  my  watch. ;  he  had  seen  it  time  and  time  again.  Tie  liad 
been  with  me  on  my  boat  from  1S70,  oft"  and  on.  His  name  is 
on  my  pay  roll  from  that  time,  at  intervals.  I  asked,  "Robert, 
what  did  you  get  for  the  watch?" 

Here  the  prisoner's  counsel  renewed  the  objection  to  the  ad- 
mission of  the  conversation,  on  the  ground  that  the  prisoner 
was  under  arrest  on  a  criminal  charge,  was  then  actually  in  the 
custody  of  the  officer,  and  was  not  notified  that  his  answer  would 
be  used  against  him,  as  was  admitted  by  the  witness.  Upon  this 
ground  the  counsel  for  the  prisoner  moved  the  court  to  exclude 
the  whole  conversation,  both  that  which  was  already  in  evidence 
and  that  which  follows. 

His  honor  ruled  that  the  state  was  entitled  to  introduce  the 


STATE  t'.  McDonald. 


371 


olce 
ill 

nts. 
Kou- 


3Ug- 


tlie 
or 


whole  of  the  conversation  on  that  occasion  in  evidence,  especially 
after  a  i)art  of  the  same  had  been  given  in  evidence  upon  a  with- 
drawal of  objection  by  the  prisoner's  counsel.  To  this  ruling  of 
liis  honor,  the  ]n'isoner  excepted. 

Tlie  witness  theji  further  testified. 

lie  answered,  "  Twenty  dollars."  I  asked,  "  To  whom  did  you 
sell  it?"  lie  answered,  "  To  the  captain  of  a  vessel."  I  asked 
if  he  knew  his  name;  he  replied  that  he  did  not;  I  asked  if  he 
could  tell  nie  where  the  vessel  was  lying;  he  answered,  "  At  or 
near  the  old  New  York  steamship  wharf,  in  Wilmington."  This 
is  a  wharf  near  against  the  wharf  of  AVorth  &  "Worth.  I  said, 
"  Kobert,  it  could  not  have  been  possible  you  sold  the  watch  for 
$20."  He  said,  "  Yes,  sir."  I  said,  "  Did  you  know  that  it  was 
a  gold  watch  i"  lie  said  he  did  not  know  it,  but  thought  it  was; 
that  Itich.vrdsou  told  him  if  he  could  get  §20  for  it  to  sell  it; 
that  it  was  a  galvanized  watch;  he  had  won  it  gambling,  I 
asked,  "  liobert,  are  you  telling  me  the  truth?  That  was  a  fine 
gold  watcli,  and  I  prized  it  highly;  it  was  a  present;  can't  you 
put  me  in  the  way  of  recovering  it? "  lie  said,  "  Captain,  I  sold 
it."  The  prisoner  lived  about  a  mile  from  me;  I  saw  him  here 
about  election  time,  in  August,  a  few  days  before;  he  worked 
about  the  river.     The  pay  of  a  deck  hand  is  $1G.50  per  month. 

Upon  cross-examination,  the  witness  testified  as  follows: 

The  prisoner  worked  for  me  last  spring  (1874)  a  short  while; 
he  worked  for  me  some  every  year  since  1870;  he  had  not  worked 
for  me  regularly  for  the  last  t\\x>  years;  he  worked  for  me  in 
1871.  William  Ilichardson,  the  colored  man  to  whom  the  pris- 
oner referred,  has  worked  for  me  regularly  for  the  last  two  years; 
he  has  not  lost  ten  days.  When  my  boat  would  come  up  the 
river,  I  usually  sent  some  of  the  hands,  when  there  was  nothing 
else  to  do,  to  my  house  to  saw  wood.  Ilichardson  was  up  at 
Fajetteville  the  night  my  house  was  robbed;  he  frequently 
chopped  wood  at  my  house;  he  claimed  to  stay  at  Allen  Harris', 
near  the  fiour  warehouse,  one  hundred  yards  from  my  house.  I 
had  Ilichardson  arrested  and  put  in  jail  for  this  charge.  The 
prisoner  was  arrested  first,  and  on  the  same  evening  I  had  Rich- 
ardson arrested.  All  I  had  against  Ilichardson  M'as  the  prison- 
er's statement.  Both  were  put  in  jail.  I  had  before  this  caused 
the  arrest  of  two  other  men,  Abram  Williams  and  Adam  Jessup, 
who  were  both  discharged.    Willi.am  Richardson  was  used  as  a 


372 


AMEinCAN  CRIMINAL  REPORTS. 


H- 


I 


i  i's 


witness.     I  liad  twelve  boat  hands  under  me.     I  carried  the 
watch  before  the  war.     Illchardson  had  as  good  a  chance  to  see 
the  watcli  as  tlie  prisoner;  I  liave  stood  witli  the  watch  in  niy 
hand,  timing  boat  liaiids  in  rolling  Imrrels.     I  would  not  swear 
the  prisoner  ever  saw  the  hands  of  the  watch  or  the  engraving  of 
the  hunter  on  the  case.     I  have  never  seen  my  watch  since  it 
was  stolen;  I  did  not  see  the  vest  from  the  lime  it  was  taken,  on 
the  11th  of  August,  at  night,  until  I  saw  it  in   tlie  prisoner's 
house  two  weeks  after  the  4th  of  December,  on  I'riday.     I  did 
not  tell  the  prisoner  what  he  was  arrested  for;  I  did  not  tell  him 
I  had  got  my  vest;  he  told  me  without  hesitation  about  his  get- 
ting the  things  from  Richardson.     Kichardson  was  in  town  the 
night  my  house  and  kitchen  were  robbed,  and  the  next  day. 
Upon  redirect  examination  the  witness  testified: 
The  prisoner  said  the  butter  was  in  a  tin  package,  sealed  up 
like  a  paint  can.     I  asked,  "  What  did  you  do  with  that  pack- 
age?"    lie  said,  "  We  used  a  part,  and  I  carried  the  balance  to 
my  sister  the  day  before."     This  conversation  occurred  the  day 
of  the  arrest,  on  a  Friday,  two  weeks  after  the  -tth  of  December, 
ISTl,  being  the  ISth  of  the  month.     I  did  not  lose  cheese  and 
butter  on  the  occasion  of  my  house  being  entered  on  the  night 
01  the  11th  of  August,  but  on  a  subseciuent  occasion  when  my 
house  was  entered  again  by  some  one.     The  prisoner  described 
the  watch  as  having  a  white  face,  large  steel  hands,  and  ordinary 
chain  worn  smooth. 

Ca])t.  Oldham  was  introduced  as  a  witness  on  behalf  of  the 
state,  and  testified  as  follows:  I  know  the  prisoner.  1  saw  him 
in  AVihnington  on  the  12th  of  September  last  on  board  of  a  ves- 
sel run  by  Oapt.  Lyons,  lying  at  Joppill's  wharf.  I  then  saw  in 
the  hands  of  the  ])risoner  on  board  the  vessel  a  double  cased 
watch  with  a  landscajie  engraved  on  one  side,  and  on  the  other  a 
luinter,  a  deer,  and  a  dog.  It  had  a  white  face  and  large  steel 
hands;  its  number  was  32,308.  I  made  a  memorandum  at  the 
time.  I  asked  the  prisoner  his  object  in  selling,  lie  said  he 
was  then  away  from  home,  without  money,  and  sick,  and  wanted 
money  to  get  home  with,  and  that  he  lived  in  Charleston,  that  he 
would  take  $75  for  it,  but  would  prefer  to  pawn  it  for  $20  as  he 
had  owned  it  a  long  time,  and  hated  to  i)art  with  it.  I  asked 
what  guaranty  he  would  give  that  the  watch  would  be  called 
for.    He  answered  that  he  had  owned  the  watch  a  long  time  and 


STATE  V.  McDonald. 


373 


swinging  It  around  liis  head  ho  said  ho  would  not  Vo  afraid  to 
sliow  it  in  any  city.  I  asked  hinx  to  give  nio  tho  names  of  sonic 
people  living  in  Charleston.  Ho  mentioned  some  names.  I  did 
not  know  tlieni.  I  knew  sucli  names  in  ^Vilmington.  I  am  not 
acquainted  in  Charleston.  When  I  went  up  tu  him  he  had  tlio 
watch  and  chain  hoth  in  his  pocket  and  out  of  siglit.  I  went  to 
(lucstion  him  in  conse(pience  of  information  I  had  received.  I 
afterwards,  during  tho  same  day,  ^eareiled  tho  wharf  for  tho 
prisoner,  and  could  not  find  him.  Search  was  also  nuide  by  de- 
tectives, but  wo  did  not  find  him. 

Upon  cross-examination  the  witness  testified:  I  never  saw  tho 
prisoner  before  the  1:2th  of  September  last.  I  took  down  the 
number  of  the  watch.  A  man  came  to  me  and  asked  nio  to  go 
and  look  at  the  watch.  It  was  Ca})t.  Lyons  of  the  schooner.  I 
told  the  prisioner  that  $75  was  more  than  I  would  give  for  tho 
watch.  Cai)t.  Lyons  was  on  board  tho  vessel  when  I  got  there. 
So  was  tho  ]>risoner.  I  told  Capt.  Lyons  I  had  come  to  see  the 
watch,  and  he  pointed  out  the  prisoner  tome.  I  went  up  to  tho 
prisoner,  and  asked  to  see  the  watch  ho  wanted  to  sell.  I  do  not 
know  whether  Capt.  Lyons  bouglit  tho  watch.  I  left  the  pris- 
oner on  board.  1  was  there  some  fifteen  minutes.  I  did  not 
search  any  house  in  "Wilmington  for  the  prisoner.  I  did  not 
take  down  tho  name  of  tho  maker  of  tho  watch. 

AVilliam  llichardson,  a  witnc^ss  for  the  state,  testified  as  fol- 
lows: I  have  l>een  working  for  Capt.  Green  for  three  years.  I 
never  sold  a  vest,  or  butter,  or  cheese  to  Robert  McDonald.  I 
never  gave  him  a  watch  to  sell. 

Upon  cross-examination  tho  witness  testified:  I  live  below 
the  fiour  warehouse.  I  work  for  Capt.  Green  on  tho  boat,  and 
sometimes  cut  wood  for  him  at  his  house.  I  came  up  the  river 
the  morning  of  that  night  on  the  boat  witii  Capt.  Green.  That 
niglit  I  was  out  between  11  and  12  o'clock.  There  was  a  littlo 
festival  iroinj;  on  in  town  that  nii^ht.  Iwentthereand  ifot  home 
at  11  or  12  o'clock.  This  was  tho  night  of  the  last  robbing. 
On  tho  night  of  tho  first  robbing  there  was  a  procession  in  Fay- 
ettevillc,  and  it  was  raining.  I  was  in  the  street  awhile  burning 
barrels.  I  was  at  Capt.  Green's  next  morning  about  7  o'clock. 
I  lived  one  hundred  yards  oft'.  I  had  heard  up  the  street  about 
the  robbing  and  I  went  to  see  and  look  about.  I  saw  they  had 
robbed  tho  house.    I  was  arrested  by  the  deputy  sheriff  the  saiao 


m 


If: 


V,  .«.,?■• 


■  T     ■     - 


:■!  -j 


874 


AMERICAN  CRIMINAL  REPORTS. 


day  the  prisoner  was,  wliile  I  was  at  work  on  the  boat.  I  proved 
where  I  was,  Ned  Gihnoro  was  c/ne  of  my  witnesses.  Julius 
Evans  and  Sam  Jones  proved  where  I  was.  They  were  examined 
by  'Squire  AVhiteliead.  The  prisoner  did  not  j^et  any  of  the 
thing's  from  me.  1  know  Capt.  (Jreens'  wateh  because  it  was  a 
watch  lie  had  a  lon<^  time,  aiul  I  saw  it  so  often.  He  ])ulled  it 
out  sooften  when  I  worked  under  him.  It  had  a  white  face  and 
the  largest  steel  hands  I  ever  saw  on  a  watch-  It  was  a  dnublo 
case  gold  watch.  I  never  had  hold  of  it.  It  had  a  heavy  gold  or 
plated  chain.  I  have  vests  (the  witness  had  on  no  vest  at  tlio 
time);  I  never  sold  any  to  the  ]>risoner.  I  came  from  Uhukii 
county  and  formerly  belonged  to  Dr.  liichardsun.  I  used  tonui 
on  the  railroad  train,  but  my  partner  got  his  arm  cut  oil"  and  I 
quit.     His  name  was  AV^ash.  Cha])man.     "We  were  train  hands. 

Upon  redirect  examination  the  witness  testilied:  I  asked  the 
prisoner  while  we  were  in  jail,  why  he  had  me  ])ut  in  jail  for  noth- 
ing?' lie  said  somebody  like  me  brought  the  thing  to  him.  The 
prisoner  was  not  working  on  the  boat  when  this  hapi)ened. 

Josejdi  A.  "Worth,  a  witness  for  the  state,  testified :  "  On  one 
occasion  after  the  prisoner  was  committed  to  jail  by  the  justice  of 
the  ])eace,  I  went  to  see  him,  in  company  with  the  deputy  sherill" 
and  Captain  Green,  to  get  information  about  (Captain  (Jreen's 
watch.  The  prisoner  was  told  he  was  not  bound  to  answer,  and 
that  anything  he  said  might  be  used  against  him.  I  asked  hiiu 
where  he  got  the  ten  dollars  in  money  he  had  sent  his  wife." 

The  prisoner  objected  to  the  evidence  of  the  witness,  on  the 
ground  that  he  was  a  witness  and  also  foreman  of  the  grand  jury 
that  passed  the  bill  which  was  now  being  tried.  The  counsel  fur 
the  prisoner  took  the  ground  that  he  was  on  that  account  an  in- 
competent witness;  as  presiding  officer  of  the  grand  jury  he  was, 
in  efl'ect,  a  judge,  and  could  not  also  be  a  witness  in  a  case  before 
him.  The  witness  stated  that  he  was  foreman  of  the  graTid  jury, 
and  had  been  sworn  as  a  witness  and  examined  Ijefore  the  -n-aiid 
jury,  but  did  not  vote  upon  the  bill.  The  rest  of  the  grand  jury 
were  all  present,  and  voted  aye  on  the  bill.  There  was  no  dis- 
senting voice.  It  was  usufil  when  there  was  any  dissenting  voice 
to  require  a  division.  There  was  no  dissenting  voice  and  no  di- 
vision in  this  case.  Ills  honor  overruled  the  objection,  and  the 
prisoner  excepted. 

The  witness  then  testified:    "The  prisoner,  in  reply  to  my 


STATE  r.  McDONALD. 


375 


't>VOtl 

lined 
the 

Viis  ;i 
0(1  it 

ukI 

iihlo 

(lor 

tlio 

iik'ii 

run 

iii.l  I 

uids. 

1  the 

Uitll- 

The 


question,  snid  tliat  lie  had  carried  four  dollara  away  from  hero 
with  liim,  and  had  earned  the  otlier  six  on  the  wharf,  in  AVil- 
niingtun.  I  asked  him  if  he  really  did  sell  the  watch  to  the  cap- 
tain of  the  vessel?     lie  answered  'yes.'  " 

Upon  cross-examination,  the  witness  testified :  "  I  was  ])res- 
ent  at  the  trial  before  'S(j^u ire  Whitehead,  the  examining  justice. 
]}(»th  Ilichardson  and  the  prisoner  were  charged.  Gilmore  wa3 
examined,  but  not  as  to  an  alibi  for  Ilichardson.  Julius  Wil- 
liams was  there.     Ilichardson  was  examined." 

Uj)on  redirect  examination,  the  witness  testified:  "  I  have 
known  the  prisoner  for  several  years;  his  means  are  limited;  he 
is  a  labur'jig  man,  and  lives  by  work." 

Thomas  J.  Cireen  was  recalled  by  the  state,  and  testified:  "  I 
think  I  know  the  general  character  of  the  witness  AVilliam  Tlich  • 
ardson.  His  associates  think  well  of  him;  I  have  never  heard 
him  accused  of  stealing." 

Upon  cross-examination,  the  witness  stated  that  he  had  Ilich- 
ardson arrested  about  this  matter. 

The  counsel  for  the  prisoner  asked  the  court  to  charge  the 
jury: 

1.  That  there  is  no  evidence  that  the  house  of  the  prosecutor, 
Cai)tain  Thomas  J.  Green,  was  broken  and  entered  in  the  night 
time;  that  in  a  charge  of  this  nature,  time  was  a  material  circum- 
stance to  be  established,  and  by  direct  and  positive  testimony, 
and  not  by  mere  inference. 

2.  That  the  ])ossession  by  the  prisoner  was  not  a  recent  pos- 
session, so  as  to  raise  a  presumption  in  law  that  the  prisoner 
stole  them. 

IJis  honor  declined  to  give  the  first  instruction  prayed  for,  and 
charged  the  jury  in  relation  thereto  as  follows: 

"That  it  was  absolutely  necessary  for  the  state  to  prove,  to  the 
entire  satisfaction  of  the  jury,  that  the  breaking  and  entering 
was  done  in  the  night  time,  that  is,  at  a  time  whon  there  was  not 
daylight  enough  to  discern  a  man's  face  in  the  yard.  That  it 
was  competent  to  prove  this,  as  well  as  other  indictments  of  bur- 
glary, by  circumstantial  evidence.  The  eft'ect  of  the  evidence, 
however,  must  be  so  convincing  on  the  minds  of  the  jury  as  the 
sworn  evidence  of  a  credible  eye  witness.  The  jury  are  not  to 
jump  at  conclusions.  In  this  case  there  is  some  evidence  to  be 
considered  by  the  jury,  that  the  breaking  and  entering  was  done 


f^ 


•^; 


K« 


: 


370 


AMERICAN  CRIMINAL  REPORTS. 


in  the  iii^'ht  time.  Tlio  circnmstiinccs  cletiiiletl  in  the  evidence, 
tending  to  show  this,  have  been  referred  to  hy  the  coimsol  on 
the  part  of  tlie  state,  viz.:  tlie  early  lionr  when  the  discovery  was 
made  hy  Captain  Green  that  liis  lionse  had  heen  entered  and 
I'obhed,  stating  tliat  lie  rose  when  it  was  clearly  light,  between 
daylight  and  sunrise,  the  ])rej)aration  made  for  etl'eeting  the  en- 
trance, the  getting  together  under  the  windov.',  the  axe,  box  und 
chair,  involving  the  expenditure  of  time  in  making  these  arrango- 
ments,  the  time  taken  in  efl'ecting  the  entrance  and  eon»pletiiig 
the  robl)ery  in  the  house,  the  situation  of  the  house  on  a  public 
street  in  Fayetteville,  involving  ex])osnre  if  the  entrance  had  not 
been  elleeted  i.i  the  dark." 

These  circumstances  were  pressed  npon  their  attention  by 
the  counsel,  to  satisfv  them  ti*iat  the  breaking  and  entering  was 
done  ii:  the  night  time.  The  state  must  satisfy  the  minds  of 
the  jury  upon  this  point  beyond  a  reasonable  d(jubt,  otherwise  a 
conviction  of  burglary  is  out  of  the  question. 

To  this  charge  uf  his  honor  the  prisoner  excepted, 
llis  honor  gave  the  second  instruction  prayed  for,  but  added: 
"AVliile  the  |)Ossession  by  the  prisoner  of  the  watch  and  vest, 
owing  to  the  lapse  of  time  since  the  loss,  was  not  a  recent  jios- 
session,  so  as  to  raise  a  legal  jiresumption  of  gnilt,  yet  the  fact 
of  possession  is  a  circumstance  to  be  considered  along  with  tlio 
other  circumstances  of  the  case,  in  determining  the  (juostioa 
whether  the  ]>risoner  was  guilty  of  the  larceny.  Whether  these 
circumstances  were  proved,  and  what  weight  they  were  entitled 
to,  it  was  a  question  for  the  jnry  to  say.  Among  these  was  tlio 
circumstance  that  the  articles,  the  vest  and  the  watch,  stolen 
from  the  house  at  the  same  time,  are  found  in  the  possession  of 
the  prisoner;  that  one  of  the  articles,  the  watch,  was  of  a  nature 
and  value  nnsuited  to  the  means  and  condition  in  life  of  the 
prisoner;  that  he  was  contradicted  by  AVilliani  llichardson  in 
his  acconnt  as  to  how  he  came  by  these  articles ;  the  conflicting 
character  of  his  own  statements  in  reference  to  the  watoh,  made 
to  Green  and  Oldham." 

To  the  foregoing  portion  of  his  honor's  charge,  the  prisoner 
excepted,  especially  to  his  honor's  including  in  the  enumeration 
of  circumstances  "  that  one  of  these  articles,  the  watch,  was  of  a 
natnre  and  value  nnsuited  to  the  means  and  condition  in  life  of 
thej)risoner." 


; 


STATE  r.  McDONALD. 


377 


!ncc, 

on 

was 

iind 

Vl't'M 

en- 
iiiul 

)Iic 
not 


The  jury  returned  a  verdict  of  "iifuilty  of  buvfjlary,"  and  there- 
ui)">a  the  i)ri6oner  moved  for  a  new  trial.  The  motion  was  over- 
ruled, and  the  ])risoner  moved  in  arrest  of  judgment  upon  these 
trrounds: 

1.  J'ecanso  tlie  indictment  was  conclndL'(l  at  common  law, 
whereas  it  should  have  concluded, "  against  the  form  of  the  stat- 
ute." 

2.  Eccanso  the  indictment  charged  that  the  breaking  and  en- 
tering was  for  the  purpose  of  committing  a  larceny,  wlicreas  tho 
oilense  of  burglary  consists  in  breaking  and  entering  for  the  pur- 
pose of  committing  felony. 

The  motion  in  arrest  was  overruled,  and  judgment  of  death 
pronounced  by  the  court,  frona  which  judgment  the  prisoner  ap- 
pealed. 

IF".  Z.  Jlc'L.  McKtti/  and  Guthrie,  for  the  prisoner,  llar- 
(/ivvd,  Attorney  General,  for  the  state. 

Byxum,  J.  NoTie  of  the  objections  raised  by  the  counsel  for 
the  prisoner  are  available  to  him. 

1.  Tho  confessions  of  the  prisoner  were  voluntary*  and  admis- 
sible, even  without '•  the  constMit  of  the  counsel;  but  when  tlw 
counsel  withdrew  his  objections,  and  allowed  the  greater  part  of 
the  conversation  between  the  witness  and  the  prisoner  to  bo 
given  in  evidence,  he  had  no  right,  by  removing  the  o]>jection,  to 
exclude  a  part  or  the  whole.     /Si(fte  v.  Davis,  G3  N.  C,  57S. 

2.  We  know  of  no  rule  of  evidence  which  excluded  the  testi- 
mony of  Worth  because  he  was  a  grand  juror,  even  if  he  had 
acted  as  such  in  finding  the  bill.  ]>ut  when  it  appears  that  ho 
declined  to  act  or  vote  on  the  bill,  because  he  was  a  witness, 
there  is  no  ground  for  objection  to  his  competency. 

3.  The  counsel  for  the  prisoner  asked  the  court  to  instruct 
the  jury  that  there  was  no  evidence  that  the  breaking  was  in  the 
night  time.  This  was  properly  refused,  because  there  was  much 
evidence  given,  going  to  show  that  the  breaking  and  entering 
were  in  the  night  time.  The  evidence  is  set  forth  in  the  case, 
and  we  think  it  fully  sustains  the  ruling  of  the  court;  and  when 
the  court  proceeded  to  charge  the  jury  that  they  must  be  satis- 
fied, beyond  a  reasonable  doubt,  that  the  breaking  and  entry 
were  in  the  night  time,  it  was  then  for  them  to  say  from  the 
evidence  how  the  matter  was. 


'•■ 


s- 


I. 


378 


AMERICAN  CRIMINAL  REPORTS. 


m 


4.  The  court  was  asked  to  instruct  the  jnry  that  tlie  possession 
of  the  watch  proved,  was  not  sucli  a  recent  possession  as  raii^ed 
the  j)resninption  of  hiw,  tlmt  the  prisoner  was  the  thief.  This 
instruction  was  given,  hut  the  jury  were  told  that  this  ])ossession 
of  the  stolen  article  was  a  fact  which  they  iniiijht  consider  with 
the  other  fact  upon  the  question  of  his  guilt.  In  this  there  was 
no  error. 

5.  The  counsel  moved  in  arrest  of  judgment,  hecause  the  in- 
dictment concluded  at  common  law,  when  it  should  have  con- 
cluded against  the  statute. 

This  ohjoction  is  disposed  of  hy  this  court  in  the  case  of  the 
State  V.  Jiatti^,  03  X.  C,  503.  "When  the  oilense  is  made  of  a 
higher  nature  by  statute  than  it  was  at  common  law,  the  indict- 
ment must  conclude  against  the  statute;  but  if  the  punishment 
is  lessened,  it  need  not  so  conclude.  In  our  case,  the  oil'oiise  of 
burglary  is  the  same  that  it  was  at  common  law,  and  the  punish- 
ment is  neither  greater  or  less  than  it  was  at  common  law,  l»ut 
the  same.  The  conclusion  of  the  indictmeiit  was  therefore 
pro2)er.  The  other  ol ejections  made  in  the  record  have  no  force 
in  them,  and  were  not  insisted  upon  in  this  court. 

There  is  no  error. 

Per  Cukiam:  JiuJ<juient  ajfinned. 


Statk  vs.  Fknx. 
(41  Conn.,  590.) 


Larceny:     Wltat  const'dntes  —  FvIoiiIoks  intent — Description  in  information^ 

Variance  —  Ecidvncc, 


An  officerof  a  I)iink  with  wliioli  a  note  of  tho  (Icfciuliint  hail  been  loft  for  collec- 
tion calk'd  on  tho  defendant  with  tho  noto  for  payniont.  Tlic  doft'ndaiit 
asked  to  ho  allowed  to  st>e  the  note,  and  on  its  Iiein<,'h;inded  to  him,  waiiied 
out  of  tho  room  with  it,  and  secreted  or  destroyed  it.  In  a  ))rosecution 
a<?ainst  him  for  theft,  it  was  heht,  on  a  motion  of  the  defendant  for  a  new 
trial,  that  tho  oonrt  heIo\/  [jroperly  ohar;,'ed  the  jury  that  if  the  defendant 
obtained  possession  of  tho  noto  with  a  felonions  intent,  tho  act  was  tlu'ft. 

Also  that  tho  court  properly  charged  that  tins  intent  to  deprive  tho  owner  of 
his  property,  and  to  gain  some  advantage  to  hinisolf,  constituted  a  felon- 
ious inti'iit. 

Tlio  "  taking"  in  theft  need  not  necessarily  bo  socn;!,  and  without  the  know- 
lodgo  of  tho  owner,  but  may  be  done  openly,  by  deception,  artifice,  fraud  or 
force. 


tllG 


STATE  V.  FEXN. 


379 


The  note  was  dcscribod  in  the  information  as  "  a  certain  promissoiy  note  dated 
November  0,  18''2,  siyned  by  the  defendant,  for  the  payment  to  W.  or  order, 
of  ^'J,:!00  on  the  list  of  May,  1872,  vahie  received,  a  more  full  deHcrijrtion  of 
which  i.s  to  the  attorney  for  the  stute  unknown."  llvhl  to  be  sufficiently  de- 
scribed. 

The  note  was  in  fact  for  Si!2,o00  and  interest  and  all  taxes.  Ilihl  not  to  bo  a 
fatal  variance,  all  tliat  is  reriuiivd  beinfjf  such  substantial  accuracy  as  shall 
make  the  identity  of  the  note  unijuestionable,  and  protect  the  accused  from 
another  prosecution  for  the  same  otl'ense. 

And  held  tliat  tlie  defendant,  who  wrongfully  took  the  note  and  destroyed  it, 
should  not  be  pornutted  to  say  that  it  wius  not  described  wth  the  utmost 
particularity. 

The  note  was  payable  to  W.  or  order,  and  was  by  W.  endoi-sed  to  II.,  and  by  H. 
ondors(.'d  in  blank,  and  it  had  been  left  by  H.  at  a  bank  for  collection.  Tho 
inf(jrmation  described  the  note  as  the  projierty  of  If.  Ilehl  that  the  fact  of 
its  beiny  indorsed  by  II.  did  not  necessarily  show  tluit  II.  was  not  still  tho 
owner,  anil  that  the  jndjfe  below,  after  instructing'  the  jury  that  the  noto 
must  have  been  delivered  liy  W.  to  II.  properly  left  it  to  them  to  say  from  all 
the  evidence,  wliether  W.  had  delivered  the  note  to  H.,  and  whether  H.  was 
still  the  owner. 

And  hrhl  that  the  judg(!  properly  charged  tho  jury  that  the  state  was  bound  to 
prove  the  note;  to  be  of  some  value,  but  that  tlicy  were  not  limited  to  direct 
evidence  on  tliis  point,  but  might  consider  anv  evidence  from  which  the 
value  might  be  inferred. 


m 


Infoumation  for  tlicft;  brought  to  the  Superior  Court  in  Neio 
Haven  County,  and  tried  to  tlie  jury,  on  tlie  plea  of  not  guilty, 
before  Loom  is,  J. 

The  information  charged  that  at  the  town  of  Xew  Haven,  on 
the  3cl  day  of  ^lay,  1873,  "William  S.  Fenn  of  said  town,  with 
force  and  arms,  one  certain  ])romissory  note,  dated  November  6, 
1872,  signed  l)y  the  said  Fenn,  for  the  payment  of  twenty-three 
hundred  dollar.-^,  for  value  received  to  F.J.  AVhitteniore  or  order, 
on  the  1st  day  of  ^lay,  1S73,  and  by  the  said  F.  J.  Whittemore 
endorsed,  and  by  him  delivered  to  Henry  A.  Warner,  of  said 
New  Haven,  a  more  particular  description  of  which  is  to  tho 
attorney  for  the  state  uidcnown,  of  the  goods  and  chattels  of  said 
Henry  A.  Warner,  and  of  the  value  of  twenty-three  hundred  dol- 
lars, feloniously  did  steal,  take,  and  carry  away,  contrary  to 
statute  in  said  case  made  and  provided,  and  against  the  peace. 

Upon  the  j  'al  the  state  ottered  in  support  of  the  prosecution 
the  evidence,  among  others,  of  William  T.  JiaHlett,  who  testified 
as  follows:  On  the  30th  of  April,  1873,  I  was  and  ever  since 
liave  been  the  treasurer  of  the  Union  Trust  Comjiany  of  New 
Haven,  a  company  engaged  in  banking  business,  and  on  that  day 


a- 


AMERICAN  CRIMINAL  REPORTS. 


Henry  A.  "Warner  left  with  me  as  snch  trcaourer,  a  iiotu  for  col- 
lection, tlie  proceeds  to  be  placed  to  the  credit  of  Warner  if  col. 
lected,  bnt  if  not  paid  on  dennind,  the  note  to  be  protested  in  the 
usnal  nninncr. 

The  note  was  taken  possession  of  by  the  defendant,  and  lie  did 
not  retnrn  it  to  nie.  lie  stated  that  he  had  placed  it  in  the  hands 
of  a  friend,  and  snbseqnently  he  stated  that  he  had  nsed  it  in  a 
water  closet.  The  last  I  saw  of  the  note  the  defendant  took  it. 
I  think  a  correct  description  of  the  note  is  as  follows: 

"82,n(»0.     Xew  Haven,  Xovember  Cth,  1ST2.     On  the  first 
day  of  ^lay,  1873,  I  promise  to  pay  to  l'\  J.  Whittcmore  or  order 
twenty-three  hnndred  dollars,  with  interest  semi-annually,  and 
all  taxes  assessed  on  said  sum,  value  received.     If".  aS'.  7*\'»»." 
[To  the  ititroduction  of  this  evidence  the  defendant  objected,  on 
the  ground  of  variance  as  to  payment  of  semi-annual  interest  and 
taxes.     The   state    claimed  that  there  was  no  variance,  as  at 
most  it  was  a  redundancy  of  proof  and  not  of  alleviation,  and  also 
that  as  the  defendant  had  destroyed  the  note,  it  was  not  compe- 
tent for  him  to  object  that  it  was  not  described  with  exactness. 
The  court  overruled  the  objection,  and  admitted  the  evidence.] 
The  note  was  endorsed,  '•  Pay  II.  A.  Warner  or  order.     F.  J. 
Wurn'KMOKK."     Also  endorsed  "  11.  A.  AVaknku."     [This  was 
excepted  to  by  the  defendant,  as  the  information  did  not  state 
how  the  note  was  endorsed,  but  the  court  overruled  the  excep- 
tion and  admitted  the  evidence.]     I  had  sent  notice  to  Fenn  of 
the  time  the  note  fell  due,  and  on  the  3(1  day  of  ]\[ay,  lsT;>,  the 
note  not  being  ]iaid,  I  took  it,  lieing  a  notary,  to  (lemaii<l  pay. 
inent  and  protest  it.     Having  the  note,  I  called  on  Fcnu  at  his 
office  in  the  Globe  building,  Xew  Haven.     I  said  to  Feini,  "I 
came  to  nnike  an  official  demand  for  the  payment  of  this  note," 
at  'i   a  same  time  holding  the  note  in  my  hand.     Fenn  said,  "  vou 
wish  it  paid,  do  you?"     I  said,  "I  do."     Fenn  then  said,  "Do 
you  wish  it  paid  to-day?  "     I  said,  "  Certainly,  it  is  due  to-day." 
Fenn  then  said,  "  Let  me  sec  the  note."     I  placed  the  note  in 
his  hand  as  he  was  sitting  down,     lie  took  it  and  turned  it  over 
and  examine<l  the  endorsements,  as  was  customary,  and  then 
asked  me,  "  What  is  theamoujitof  interest  due?  "    I  replied  tliat  I 
had  not  comi)uted  it,  understanding  that  he  was  not  read}'  to  pay 
it.     Fenn  then  said,  "  Well,  figure  the  interest."     I  then  looked 
about  for  a  bit  of  paper  and  commenced  to  figure  tlic  interest,  the 


STxVTE  I'.  FENN. 


38 1 


note  still  being  in  his  hand;  he  had  moved  off  some  little  dis- 
tance from  me  at  that  time.  AVhile  I  was  busy  computing  the 
interest,  Fenu  said,  "  I  would  like  to  speak  to  s  friend  a  mo- 
ment," and  stepped  out  the  door.  I  waited  as  I  supposed  a  suf- 
ficient time  for  his  return,  and  he  not  appearing,  I  stepped  to 
the  door  leading  from  the  room  at  the  top  of  the  stairway  lead- 
ing to  the  street.  I  stopped  there  for  a  short  time,  when  Fenn 
appeared  coming  from  an  inner  apartment.  I  could  not  tell 
where.  lie  was  about  to  pass  me  and  go  down  the  stairs  to  the 
street,  and  said:  "Step  into  my  office  a  moment  and  I  will  step 
out  and  get  tlie  money,"  and  also  said  something  about  going  to 
the  bank  in  that  connection.  I  said  that  he  had  better  leave  the 
note  with  mo  while  he  went  out.  He  then  said  he  had  handed  the 
note  to  a  friend,  or  placed  it  in  the  hands  of  a  friend.  I  said  to 
Fenn  tliat  he  could  not  leave  the  building  till  he  produced  the 
note.  lie  turned  and  went  into  his  office  without  any  opposi- 
tion. I  thei;  went  to  the  foot  of  the  stairs  and  saw  a  policeman, 
and  requested  him  to  sit  In  the  room  occupied  by  Fenn  till  my 
return.  I  went  out  and  consulted  the  authorities,  and  returned 
to  Fenn's  office,  and  said  to  him  that  I  did  not  wish  to  make 
liini  any  trouble;  if  he  would  produce  the  note  that  was  all  I 
required.  Fenn  said  he  could  not  produce  it,  as  it  was  in  the 
liands  of  a  friend.  I  said  to  him,  "  Can  you  produce  the  note  if 
yon  go  tf  see  your  friend?"  He  said  he  could  see.  I  said  to 
him,  "  You  certainly  know  whether  you  can  produce  the  note  or 
not,  if  yon  go  to  your  friend."  He  said  he  could  see.  Xot  get- 
ting any  satisfaction,  I  went  out  and  put  Lhe  matter  in  the  hands 
of  John  W.  Ailing,  city  attorney.  Mr.  Ailing  drew  up  the  neces- 
sary pa])ers  and  went  to  Feim  with  me.  He  said  to  Fenn  that 
he  had  got  himself  into  trouble,  and  he  had  better  produce  the 
note.  Fenn  said  he  could  not  do  so.  Ailing  then  asked  Fenn 
what  he  had  done  with  the  note.  He  replied  that  he  went  to 
the  water  closet  and  used  it.  Ailing  said  it  was  an  important 
matter,  and  he  had  better  go  to  the  water  closet  and  see  if  it 
could  not  be  found,  aiul  I  believe  they  went.  Fenn  left  the  rooni 
in  com])an}'  with  the  officer.  They  soon  returned  and  reported 
that  they  had  examined  the  water  closet  without  having  found 
the  note.  I  then  left  the  matter  in  the  hands  of  the  city  attor- 
ney, and  returned  to  my  place  of  business. 
Crons-cxamined.    The  original  note  was  not  before  me  when 


3S3 


AMERICAN  CRIMIXAL  RETORTS. 


I  made  tlie  copy  I  have  here.  I  made  it  first  from  recollection, 
but  afterwards  took  the  copy  from  tlie  record  of  the  mort<j;a«,'o 
f^iveu  to  secure  this  note  as  recorded  in  the  office  of  the  town 
clerk.  The  note  was  secured  hy  mortgage  of  real  estate.  ^My 
recollection  of  the  endorsements  on  the  hack  of  the  note  is  as 
follows:  "Pay  11.  A.Warner  or  order.  F.  J.  WnrrrKMoKi;.*' 
Further  endorsed:  "JIkxky  A.  "Waknku."  I  went  to  Feini's 
office  about  three  o'clock.  He  was  sitting  at  his  table,  but  not 
engaged  at  the  time,  I  think.  It  was  probably  oidy  two  or  three 
minutes  after  I  first  spoke  to  him  that  I  handed  him  the  note. 
AV^hen  he  asked  me  to  figure  the  interest,  I  think  I  sat  down  in 
the  same  chair  he  vacated  when  he  took  the  note.  I  found  tlie 
scrap  of  paper  myself  to  figure  the  interest.  lie  soon  left  the 
room.  After  I  commenced  figuring,  I  don't  know  what  he  was 
doing;  he  went  out  in  two  or  three  minutes;  he  had  the  note  in 
]»is  hands  from  the  time  I  handed  it  to  him  until  he  left  the 
room;  he  had  his  hat  on  when  I  went  in,  and  all  the  time  while 
I  was  there.  I  do  not  know  the  location  of  the  water  closet  where 
he  went. 

John  TF.  All'oHf  testified  as  follows:  "  I  went  to  Fenn's  oftice 
with  a  warrant  which  I  drew  up  upon  Mr.  Bartlett's  complaint; 
I  was  well  ac([uainted  with  Fenn.  I  said  to  him:  'I  am  sorry 
you  took  that  note.  What  made  you  do  it?'  Fenn  siiid  that 
there  had  been  a  fraud  played  on  him  by  Whittemore,  and  he 
took  it.  I  replied:  'Suppose  there  was,  that  don't  allect  Mr. 
IJartlett  or  ^Ir,  Warner,  who  took  it  before  it  was  due.'  Feim 
said:  '  I  do  not  know  about  that.'  I  then  said:  '  It  is  a  pretty 
serious  thing,  it  seems  to  me;  in  my  judgment  it  is  a  state's  prison 
ofi'ense  ^o  take  a  note  in  that  way.'  Fenn  then  said:  'I  will 
take  care  of  that.'  Tlien  I  said  to  Fenn:  *  Anyhow,  it  is  non- 
sense, because  your  taking  the  note  has  not  done  you  any  good, 
for  your  liability  is  the  same  as  if  you  had  not  got  it.'  Fenn 
said:  'Is  that  so?  I  supposed  if  the  note  was  gone,  the  whole 
thing  was  gone,  or  they  could  not  do  anything  juore  about  it.' 
I  think  I  also  said:  'You  can't  pay  it  in  that  way.'  I  then 
told  Fenn  he  had  better  give  up  the  note.  He  then  said:  'I 
li.ave  n't  it,  and  cannot  give  it  up,  anyway;  to  tell  the  truth  about 
it,  the  note  is  destroyed.'  I  asked  him  what  he  had  dttne  with 
it,  and  told  him  that  he  had  told  Eartlett  that  he  had  given  it  to 
a  friend,     lie  said  that  when  he  left  the  oiHce,  he  went  to  a 


STATE  V.  FENN. 


3S3 


•water  closet,  and  put  it  in  the  bowl.  I  suggested  tliat  lie  had  bet- 
ter look  for  it,  as  it  was  possible  that  it  was  not  lost.  He  said 
probably  there  was  no  use  in  it,  but  he  would  try.  He  and  the 
officer  went  and  came  back  and  said  it  was  not  there.  I  did  not 
say  that  I  was  a  prosecuting  officer;  nothing  said  about  it." 

Cross-czmnincd:  "I  think  I  first  said:  ' I  am  sorry,  Mr. 
Fenn,  you  took  that  note,  and  why  did  you  do  itf  He  did  not 
gay  he  had  taken  it,  but  said  Whitteniorc  had  wronged  him  in 
the  transaction  out  of  which  the  note  grew.  I  knew  nothing 
about  any  suits  then  pending.  I  told  him  it  could  not  affect 
"Warner  or  "NVhittemore,  and  he  said  he  did  not  know  about  that." 

George  S.  Selleck  testified  as  follows:  I  am  a  policeman  at 
New  Haven.  While  standing  on  the  street  corner  near  the 
building  in  which  the  accused  had  his  office,  Mr.  Bartlett  spoke 
to  nie,  and  said  he  would  like  to  have  me  come  up  stairs.  I  did 
so,  and  Mr.  liartlett  said  Mr.  Fenn  had  taken  a  note  from  him, 
and  he  wished  me  to  remain  there  in  the  office  till  he  returned, 
lie  went  away  and  after  awhile  returned.  Jiartlett  then  asked 
Fenn  what  he  had  done  with  the  note,  and  why  he  did  not  re- 
turn it.  Fenn  said  he  had  put  it  in  the  hands  of  a  friend  and 
he  could  not  return  it.  Bartlett  went  out  and  soon  after  came 
in  with  Mr.  Ailing  and  an  officer,  and  then  Mr.  Ailing  had  a 
conversation  with  Fenn;  he  told  Fenn  lie  thought  he  had  got 
himself  into  trouble  by  taking  the  note,  and  after  some  conver- 
sation that  I  do  not  remember,  Fenn  said  lie  had  taken  it  to  the 
water  closet  and  had  destroyed  it.  At  the  suggestion  of  Mr. 
Ailing,  Fenn  and  1  went  to  the  water  closet  and  examined  it, 
but  could  not  find  the  note.  "We  then  returned  to  Fenn's  office 
and  Ailing  handed  me  a  warrant  to  arrest  Fenn,  and  I  arrested 
him. 

William  S.  Fenn,  the  .iccused,  testified  in  his  own  behalf  as 
follows:  The  note  was  given  by  me  to  F.  J.  "NVhittemore  for 
S'2,300,  as  part  of  the  consideration  on  a  trade  with  Whittemore 
in  exchanging  land.  I  agree  with  the  statement  of  Bartlett  and 
Ailing  as  to  what  took  place  at  my  office.  AVIien  Bartlett  handed 
me  the  note  I  had  no  intention  of  destroying  it.  The  water 
closet  is  situated  at  the  west  end  of  the  hall,  on  the  same  floor 
with  my  office.  I  had  the  note  in  my  hand,  and  as  I  rose  from 
the  seat,  when  I  threw  the  paper  into  the  bowl,  the  note  went 
with  it.    This  note  was  secured  by  mortgage. 


m 


'i^ 


\'H 


!•:■ 


i< 


3S4 


AMERICAN  CRIMIXAL  REPORTS. 


'li 


m^4 
■■0fM 


Cross-cxn mined.  I  had  no  intention  aljont  tlie  nuvttor  wlien  I 
first  took  the  note  from  liartlett.  After  I  had  looked  at  the 
note  and  the  indorsements,  and  liad  asked  liartlett  to  conipnto 
the  interest,  I  had  no  intention  respecting  it,  and  all  that  I  did 
with  the  note  was  an  accident,  and  I  meant  to  have  the  jury  so 
understand. 

The  •witness  further  in  chief,  and  on  cross-examination,  test- 
ified to  facts  tending  to  show  that  Whittemore  had  defrauded 
him  in  the  exchange  of  land,  for  which  the  note  was  given,  and 
introduced  other  evidence  to  the  same  point,  and  claimed  to 
have  ]n'oved  the  fraud.  Tiie  state,  on  the  othei  hand,  to  rehut 
the  claim  of  fratid,  ofi'ered  evidence  to  prove,  and  claimed  to 
have  proved,  that  the  exchange  of  land  was  a  fair  transaction, 
and  perfectly  nnderstood  hy  Feini,  and  that  there  was  no  fraud 
whatever. 

The  foregoing  is  all  the  evidence  offered  on  the  trial,  exce])t 
evidence  on  the  one  hand  to  show  the  fraud,  and  on  the  other  to 
rehut  the  claim  of  fraud,  which  evidence  is  not  material  to  any 
questions  now  made  in  the  case. 

The  defendant  upon  the  foregoing  evidence  requested  the  court 
to  charge  the  jury  as  follows: 

1.  That  the  defendant  was  entitled  to  an  acquittal  hecause  a 
full  and  particular  description  of  the  note  was  known  to  tlio 
state  attorney  at  the  time  of  instituting  the  j)rosecution,  and  was 
not  given  in  the  information.  IJut  the  court  did  not  so  charge 
the  jury. 

2.  That  the  defendant  was  entitled  to  an  acquittal  hccauscthe 
description  of  the  note  ofi'ered  in  evidence  and  the  indorsement 
M'ere  each  materially  variant  from  the  note  and  indorsement  dc- 
f  crihed  in  tlie  information.     ]jut  the  court  did  not  so  charire. 

3.  That  the  defendatit  was  entitled  to  an  acquittal  hecausc 
there  was  no  legal  evidence  introduced  to  prove  that  Warner  was 
the  owner  of  the  note;  hut,  on  the  contrary,  his  hlank  indorse- 
ment on  the  note  showed  that  the  title  was  not  in  him;  and  he- 
cause  there  was  no  evidence  that  Whittemore  ever  delivered  or 
indorsed  the  note  to  Warner  or  sold  it  to  him. 

The  court  did  not  so  charge  the  jury,  hut  charged  on  this 
point  as  follows:  "The  state  is  hound  to  prove,  and  the  jury 
must  be  satisfied,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  note  in  question,  when  taken  by  the  defendant,  was  the 


STATE  f.  FENN. 


3S5 


property  of  Henry  A.  "Warner,  as  alleged  in  the  information. 
The  note,  it  is  conceded,  was  originally  given  by  the  defendant 
to  AVliittcmore,  and  payable  to  his  order;  it  must  therefore  be 
proved  that  the  title  to  the  note  passed  fi'om  "Whittemoro  to 
Warner,  and  that  when  taken,  it  was  the  property  of  Warner. 
It  is  alleged  in  the  information  that  "Whittemore  indorsed  and 
delivered  it  to  Warner,  and  evidence  to  satisfy  you  of  this  fact 
is  essential.     A  note  payable  to  order  docs  not  pass  by  delivery 
alone,  but  must  also  be  indorsed.     The  state  claims  to  have 
proved  that  Warner  was  the  owner  of  the  note,  from  the  testi- 
mony of  the  defendant,  that  ho  gave  the  note  to  Whittemoro; 
that  on  the  back  of  the  note  were  the  v/ords,  '  Pay  Henry  A. 
Warner.    F.  J.  Wiiittkmouk.'   And  from  the  testimony  of  Bart- 
Ictt,  that  he  received  the  note  from  the  hands  of  Warner,  with 
instructions  to  collect  it  and  place  the  proceeds  to  Warner's 
credit,  and  if  not  collected,  to  protest  it;  and  it  will  be  for  the 
jury  to  determine,  from  all  tlie  evidence  in  the  case,  whether 
Warner  owned  the  note  at  the  time  it  was  taken  by  the  defend- 
ant.    If  you  are  not  satisfied,  from  the  evidence,  that  Warner 
was  such  owner,  it  will  be  your  duty  to  return  a  verdict  of  not 
guilty.    The  fact  that  the  note  was  indorsed  in  blank  by  Warner 
will  not  prevent  it  from  being  his  property,  provided  such  in- 
dorsement was  made  merely  for  purposes  of  collection." 

4.  The  defendant  further  claimed  that  the  court  should  charge 
the  jury  that  he  was  entitled  to  an  acquittal,  because  there  was 
no  evidence  introduced  to  prove  that  the  note  at  the  time  the 
same  was  taken  by  the  defendant  was  of  any  value  whatever. 

The  court  did  not  so  charge  the  jury,  but  instructed  them  as 
follows:  "The  state  is  bound  to  prove  that  the  note  was  of 
some  value,  and  if  not  proved  the  jury  must  acquit  the  defend- 
ant. The  jury  are  not  restricted  to  direct  evidence  showing  the 
value,  but  may  consider  any  evidence,  though  indirect,  from 
which  the  value  may  naturally  be  inferred." 
'  5.  That  the  court  should  instruct  the  jury  that  the  act  of  tak- 
ing, to  constitute  theft,  must  be  private,  or  designed  by  the  taker 
to  be  private,  and  without  the  knowledge  of  the  owner  or  the 
public,  and  further,  that  by  the  term  "  felonious  intent,"  as  ap- 
plied to  theft,  was  meant  an  intent  to  deprive  the  owner  of  his 
property  privately  without  his  knowledge  or  the  knowledge  of 
the  public,  and  to  convert  the  same  to  the  use  of  the  taker  ia 
Vol.  I.  — 25 


3S6 


AMERICAN  CRIMINAL  REPORTS. 


h4 


•it 


15  f 


Rf  * 


f 


fY\ 


^tl!J, 


!     I 


such  a  ninnncr  as  to  prevent  the  owner  from  knowing  whore  his 
property  was,  or  who  had  taken  it. 

Tlie  court  did  not  so  charge  the  jury,  hut  instructed  them  as 
follows:  It  is  essential  that  the  evidence  convince  the  jury  be- 
yond a  reasonable  doubt  that  the  defendant  took  this  note,  us 
alleged,  with  a  felonious  intent.  Without  a  specific  and  actual 
intent  to  steal,  there  can  be  no  theft,  and  the  taking,  though 
wrongful,  would  be  only  a  trespass,  and  the  act  of  taking  the 
note,  and  this  felonious  intent  to  steal  must  both  concur  in  fact 
and  in  point  of  time.  This  felonious  intent  must  be  to  deprive 
the  owner  of  his  property  on  the  one  hand,  and  on  the  other  the 
taker  must  intend  some  gain  or  advantage  to  himself,  in  distinc- 
tion from  a  mere  act  of  mischief  to  another.  But  it  is  not 
legally  essential  to  constitute  the  crime  of  theft  that  the  taking 
be  secret  or  in  the  night,  though  the  jury  will  bear  in  mind  that 
such  circumstances  are  most  pregnant  evidence  to  manifest  the 
intent.  K  the  taking  was  secret  or  designed  to  l)c  so,  or  was 
under  the  cover  of  darkness,  it  would  be  the  strongest  kind  of 
evidence  to  show  a  felonious  intent;  and  if,  on  the  other  hand, 
the  taking  was  open,  or  in  the  j^resencc  of  the  owner  or  of  other 
persons,  it  would  be  equally  strong  evidence  that  the  taking  was 
without  a  felonious  intent,  and  therefore  a  mere  trer^pass;  but 
these  things  are  matters  of  evidence  for  the  jury,  who  alone  arc 
to  find  the  intent  upon  consideration  of  all  the  circumstances; 
and  if  instead  of  a  clandestine  or  private  taking,  or  a  taking 
nnder  cover  of  darkness,  designed  by  the  taker  to  conceal  his 
outward  act,  there  be  a  taking  by  statagem,  artifice  or  fraud,  de- 
signed by  the  taker  to  conceal  his  mental  purpose,  which  is  pre- 
cisely the  same  in  both  cases,  then  the  act  is  the  same  and  the 
crime  the  same  in  both  cases." 

6.  The  defendant  further  claimed  tliat  the  court  should  in- 
struct the  jury  that  the  act  of  taking,  accompanied  by  all  the 
circumstances  stated  by  the  witnesses  on  the  part  of  the  state  as 
matter  of  law,  did  not  constitute  theft.  But  the  court  did  not 
80  instruct  the  jury. 

7.  Also  that  the  claim  of  the  state,  that  the  possession  of  the 
note  was  obtained  by  fraud,  was  not  supported  l»y  the  evidence; 
that  the  defendant  asked  Jiartlett  to  let  him  see  the  note,  and 
that  therefore  Bartlett  handed  Fenn  the  note,  and  that  all  the 
subsequent  acts  and  declarations  of  Fenn  after  he  had  obtained 


STATE  V.  r  ENN. 


887 


possession  of  the  note  had  no  bearing  upon  the  question  of  fraud 
in  obtaining  it. 

But  tlie  court  did  not  so  charge  the  jury,  but  instructed  them 
as  follows: 

"It  will  bo  for  the  jury  to  decide  what  Fenn  meant  by  the  re- 
quest to  IJartlett  to  let  liim  see  the  liote.  Bid  he  intend  thereby 
to  have  IJartlett  understand  that  he  wanted  the  mere  temporary 
possession  of  the  note,  merely  to  see  if  it  was  genuine,  to  exam- 
ine indorsements  and  signature,  to  comi)Ute  the  interest,  or  to 
pay  it,  while  at  the  same  time  his  real  purpose  was,  in  that  way 
permanently  to  deprive  ]>artlett  of  the  note  and  to  steal  it?  The 
request  to  see  the  note  might  liave  an  honest  or  a  dishonest 
purpose,  and  to  enable  the  jury  to  determine  the  real  purpose 
and  meaning  of  that  request,  the  subsequent  acts,  false  declara- 
tions and  conduct  of  the  accused,  may  be  received  and  considered 
by  the  jury,  although  it  is  obvious  that  if  specific  acts  of  false- 
hood, artifice  or  fraud  could  be  shown  prior  to  the  delivery  of 
the  note  by  Bartlett  to  Fenn,  the  evidence  would  be  more 
weighty." 

8.  The  defendant  further  claimed  that  the  court  should  in- 
struct the  jury  that  they  would  not  be  justified  in  finding  the  de- 
fendant guilty,  although  at  the  time  he  received  the  note  from 
Uartlott,  he  intended  to  convert  it  to  his  own  nse,  unless  they 
should  also  find  that  he  took  it  without  the  consent  of  I'artlett, 
or  that  he  obtained  liartlett's  consent  to  his  taking  it  l)y  false- 
hood, or  by  force,  or  by  fraud. 

Upon  this  point  the  court  instructed  the  jury  as  follows: 

"  In  order  to  find  the  defendant  guilty,  the  jury  must  find  that 
at  the  time  he  asked  liartlett  to  let  him  see  the  note,  he  had  a 
felonious  intent  existing  in  his  mind,  and  if  the  jury  should  find 
that  he  obtained  possession  of  the  note  from  IJartlett  by  strata- 
gem, artifice,  or  fraud,  and  that  he  falsely  pretended  to  him  that 
he  wanted  to  see  the  note  for  the  mere  purjwse  of  computing  the 
interest,  or  paying  it,  when  in  fact  he  had  no  such  design,  but 
intended  to  deceive  and  did  deceive  him,  and  his  real  intent  then 
formed  and  existing  in  his  mind,  was  to  get  hold  of  the  note  and 
deprive  Hartlett  or  the  owner  permanently  of  it,  with  the  intent 
thereby  to  secure  a  pecuniary  advantage  to  himself,  then  the 
jury  might  find  him  guilty  of  the**:." 

The  jury  returned  a  verdict  of  guilty,  and  found  the  value  of 


rll 


. 


3S8 


AMERICAN  CRIMINAL  REPORTS. 


ii 


t.U 


i!r 


mt 


li 


the  stolen  note  to  bo  twenty-three  ImndreJ  dollars.  The  defend- 
ant  thereupon  moved  for  a  new  trliil  for  errors  in  the  ruluiirs 
and  charge  of  the  court,  and  upon  the  ground  that  the  verdict 
was  against  the  evidence  in  the  case. 

II.  B.  Jlunsoii  and  IF.  C.  liuhinaon,  in  support  of  the  mo- 
tion: 

Flmt.  The  verdict  was  against  the  evidence.  To  sustain  tl-.e 
verdict  the  state  must  show  that  the  defendant,  1st,  did  steal, 
take  and  carry  away,  2d,  with  felonious  intent,  -Sd,  thii  particular 
note  described  in  the  information,  4th,  of  tlie  value  of  $2,oOO,  uth, 
ol  the  goods  of  Henry  A.  Warner.  N^ot  one  of  these  propositions 
was  sustained  by  legal  evidence. 

1.  lie  did  not  steal.  The  note  was  voluntarily  "jjlaced  in  his 
hands."  Theft  implies  a  private,  secret  taking.  Webster's  Diet., 
Theft;  2  Swift,  Dig.,  341;  2  East,  P.  C.  GST;  lieyiaa  v.  Gard- 
ner, 9  Cox,  C.  C,  253;  Hex  v.  S aliens,  1  Moo.  C.  C,  12i);  1 
Bish.  Crim.  Law,  2G0. 

If  we  adopt  the  modern  doctrine  of  constructive  theft  —  "a 
delivery  obtained  by  fraud",  we  say  that  he  did  not  obtain  pos- 
session of  the  note  by  force  or  fraud.  The  state  must  prove  the 
fraud;  it  is  not  to  be  presumed.  Fenn  must  have  uttered  or 
acted  a  falsehood  to  induce  the  delivery  of  the  note,  or  else  there 
could  be  no  fraud.  lie  simply  said,  "  Let  me  see  the  notef 
Suppose  he  had  said,  "  Let  me  take  the  note? "  There  is  neither 
fraud  nor  falsehood  in  these  requests.  If  he  had  said,  give  me 
the  note  and  I  will  give  you  my  check  or  the  cash,  then  the  de- 
livery of  the  note  might  be  said  to  have  been  obtained  by  fraud. 
There  is  not  a  case  to  be  found,  from  the  earliest  reports  down 
to  the  present  time,  where  a  conviction  has  been  had,  because  the 
possession  of  an  article  was  obtained  by  fraud,  where  the  fraud 
proved  was  not  gross,  actual  and  a2>parent;  and  to  sustain  a  con- 
viction on  these  facts,  is  to  totally  obliterate  the  line  of  denuu'- 
kation  between  malicious  trespass  and  theft. 

2.  There  was  no  legal  evidence  of  a  /elouioiis  intent  on  the 
part  of  Fenn  when  he  received  the  note  handed  him  by  Jiartlett. 
This  is  essential  and  must  be  proved.  2  Swift  Dig.,  341.  A 
felonious  intent  in  larceny  is  only  evidence<l  by  force  or  fi-aiul 
preceding  or  accompanying  the  act  of  Isirceny.  3  Greenl.  Ev., 
§  157;  2  Swift  Dig.,  342.  Felonious  intent  is  rebutted  by  the 
fact  that  the  taking  was  open,  public,  avowed  and  justified  inime- 


STATE  r.  FENN. 


389 


lict 


(liatoly  after  tlio  taking.  Tl'.ei  ^  was  no  attempt  to  conceal  tlio 
fact  of  his  having  the  note,  alihongh  there  was  an  equivocation 
on  his  part  as  to  the  disposition  of  it  at  first.  Ilis  purpose  not 
to  return  it  to  I'artlett  was  nnxnifcst  from  the  first.  And  when 
the  ofiicers  came,  lie  avowed  and  justified  the  destruction  of  tlio 
note  t)n  the  grctund  of  AVhittemore's  fraud  in  ohtainin<^  the  note 
from  him.  Tiie  state  introduced  the  evidence  of  Fenn's  conduct 
and  declaration  to  prove  the  intent,  and  oflered  no  evidence  to 
disprove  the  reasons  given  by  him  for  the  destruction  of  the  note, 
lie  asserted  a"  claim  of  right  at  the  time  of  the  transaction,  and 
the  state  rested  without  ottering  any  evidence  to  disprove  that 
claim.  2  Swift  Dig.,  341;  3  Greenl.  Ev.,  §§  157,  15S.  On  this 
])oint  the  finding  of  the  jury  is  clearly  against  the  evidence. 

3.  The  allegation  of  oioncrs/n'j)  of  the  note  w.as  material,  and 
ought  to  have  been  i)roved.  2  Swift  Dig.,  340;  lloscoe's  Crim. 
Ev.,  512;  3  Greenl.  Ev.,  101.  The  only  evidence  on  the  subject 
of  the  ownership  of  Henry  A.  AVarner  is,  thai  on  the  24th  of 
April,  1873,  a  person  of  that  name  left  with  Bartlett  as  treasurer, 
"a  note  for  collection,  the  proceeds  to  be  placed  to  the  credit  of 
said  Warner,  if  collected,  but  if  not  paid,  to  be  protested,  etc." 
and  that  the  note  ])urportcd  to  be  indorsed,  "Pay  11.  A.  Warner 
or  order."  This  evidence  is  clearly  insufHcient;  for  every  mate- 
rial fact  must  be  proved  by  proper  legal  evidence  beyond  a  rea- 
eoiial)le  doubt.  On  this  point  it  failed,  and  the  verdict  is  with- 
out foundation. 

4.  The  allegation  that  this  negotiable  note  was  indorsed  and 
delivered  by  Whittemore  was  material,  and  ought  to  have  been 
proved,  because  it  was  not  only  a  descriiitive  allegation,  but  an 
allegation  by  which  alone  the  title  of  the  note  could  be  trans- 
ferred from  Whittemore  to  Warner.  "  When  a  person  or  thing 
is  described  with  greater  particularity  than  is  necessary,  those 
circumstances  must  be  proved."  lloscoe'sCrim.  Ev.,7G;  United 
States  V.  Porter^  3  Day,  283.  The  state  seems  to  have  gone 
upon  the  theory  that  the  simple  name,  F.  J.  Whittemore,  appear- 
ing on  the  note,  of  itself  proved  that  Whittemore  put  it  there. 
Hex  V.  Craven,  Russ.  &  Ry.  C.  C,  14.  llei'e,  also,  the  verdict 
is  unsupported. 

5.  The  allegation  of  the  value  of  the  note  is  also  material,  and 
ought  to  have  been  proved.  The  finding  of  the  jury  that  the 
note  was  worth  or  of  the  value  of  $2,300  rests  simply  on  the 


m 


AMERICAN  CRIMINAL  REPORTS. 


••■  Ml  naiuetl  in  tlio  note,  and  in  tlio  fact  that  the  note  was  in  mhuo 
ineasnro  secured  hy  niurt^'a^e,  witliunt  any  evidence  tlmt  the 
maker  or  indorser,  or  the  ni(>rtj,'a^'e  Hccnrlty,  were  worth  a  dnl. 
hir.  This  evidence  irt  inisullieient.  3  (ireeid.  Kv.,  §  l.");?.  TIhtu 
is  no  jireriuinption  tliat  the  note  of  a  private  citi/en  it*  of  any  par- 
ticuhir  value,  or  of  its  face  value.  There  ooukl  be  n»»  ^'ain  to  tlio 
taker  or  loss  to  the  owner  in  its  destruction;  it  was  one  uj"  siv- 
eral  evidences  of  debt,  any  one  of  which  was  sulHcient.  The  Udto 
had  no  market  value  in  itself,  and  its  transfer  j)assed  no  ]ini]i. 
erty;  hy  takinjjf  it  the  defendant  could  not  steal  the  titlu  any 
more  than  he  could  steal  the  title  to  land  by  stealin«.>;  the  died. 
If  the  note  was  of  some  value  as  a  ]>ieee  of  paper,  that  value  was 
nominal,  not  proved  and  not  within  the  jurisdiction  of  the  court. 

/Second.  The  court  erred  in  its  rulings  and  charge:  1.  As  to 
the  variance.  The  court  erred  in  admitting  the  note  in  evidiMicu 
against  the  obj'ection  urged  by  the  defendant;  and  also,  in  ri'fus- 
ing  to  charge  the  jury  that  the  variance  between  the  note  alloged 
and  the  note  proved  was  material  and  fatal.  Such  variance  did 
exist  in  this:  the  allegation  is  of  a  note  of  a  given  date,  i)ayal)lo 
at  a  given  date,  for  the  sum  of  ^:i,:JU(>,  for  value  received.  Tlio 
note  proved  coincides  in  date  and  time  of  payment,  but  the  pruni- 
ise  is  greater.  The  maker  agreed  to  pay,  and  the  ])ayee  was  en- 
titled to  re<;eive,  by  the  express  terms  of  the  note,  a  much  larger 
6um  than  8'-)'500,  vi/.:  the  interest  and  the  taxes.  These  two 
items  are  integral  and  nniterial  parts  of  the  contract,  both  as  to 
tliG  identity  of  the  note,  and  as  to  its  value.  A  conviction  for 
stealing  the  one  described  would  be  no  bar  to  a  ])rosecuti()n  for 
Btcaling  the  ditl'erent  one  ])roved.  In  a  civil  action,  the  same 
misdescrii»tion  would  be  fatal,  and  the  rule  is  the  same  in  this 
case,  but  with  greater  strictness  in  favor  of  the  accused.  Jii<jiaa 
V.  Lownj^  Law  Jiep.,  1  Crown  Cas.,  CI;  lieglna  v.  Jonett,  1  Cux 
C.  C,  105;  lte<j'nia  v.  Boiul^  12  id.,  257;  Hex  v.  Owen,  1  bloody 
C.  C,  118;  I^ex  v.  JJeelei/,  1  id.,  303;  Jicc  v.  JJund,  1  Den.  C. 
C,  517;  Jiex  V.  Wolford,  1  Moo,  &  Itob.,  384;  Ii*c.v  v.  Joitcs, 
5  Car.  &  P.,  15G;  Commomoealth  v.  Kuuf,  9  Cash.,  284 :  Com- 
monwealth V.  Beaman,  8  Gray,  497;  United  States  v.  Jlardij- 
man,  13  Pet.,  176,  179;  1  Bish.  Crim.  Law,  1052, 105,?;  2  IJish. 
Crim.  Proc,  710;  Aioh.  Crim.  Ph,  190. 

2.  The  court  cnod  in  refusing  to  charge  the  jury  tliat  when 
the  note  could  be  accurately  aescribed  by  the  state's  attorney,  he 


STATE  V.  FENN. 


391 


iir^'tT 


waft  Itoiind  so  to  describe  it.  (}o(»(lri  iilk'(];c(l  to  bo  stolen  must  bo 
iicciinitely  described  (2  Swift,  ;U(»),  unless  tlio  attorney  is  una- 
ble BO  to  descriljo  them,  in  which  case  ho  must  so  state.  In  this 
catio  the  attorney  neither  describes  the  note  accurately,  nor  says 
that  he  cannot  so  describe  it. 

3.  In  refiisin^  to  char<,'o  as  refjucsted  conccrnini^  tlie  owner- 
sliip  of  the  note.  The  defendant  was  entitled  to  this  charge. 
The  facts  were  as  described,  and  on  tliese  facts  an  ac(iuittai  shoukl 
follow. 

4.  In  refusin<,'  to  char<^o  concernini^  the  value  of  the  note  as 
requested.  The  defendant  was  eiititleil  to  this  char<,'e.  The  facts 
were  as  described,  and  on  these  facts  an  acquittal  should  follow. 
The  court  did  not  so  charge,  but  told  the  jury  that  they  might 
{iijcr  the  value  from  any  evidence  there  was.  The  evidence  is 
all  in  the  record,  and  wo  submit  that  thoro  is  nothing  on  which 
to  base  a  conjecture. 

5.  In  refusing  t(»  charge  that  to  constitute  theft  the  taking 
must  be  j)rivate.  In  theft,  in  tills  state,  the  taking  must  be  ])ri- 
vate.  The  statute  says  "  steal."  To  steal  is  to  take  privately. 
A  felonious  intent  and  an  intcjnt  to  take  i)ublicly  are  not  consistent 
with  each  other.  The  court  did  not  so  charge,  but  told  the  jury, 
in  substance,  that  any  taking,  with  intent  to  deprive  the  owner  of 
his  jiroporty,  and  to  procure  gain  to  the  taker,  was  a  theft.  His 
delinition  of  felonious  intent  is  erroneous.  liajlna  v.  Hollo- 
tcaij,  3  Cox  C.  C,  *J41;  liatmoni  v.  /State,  22  Conn.,  150. 

0.  In  refusing  to  charge  as  re(|uested  concerning  taking  by 
fraud.  There  was  no  evidence  of  any  fraud  preceding  or  accompa- 
nying the  taking.  Fraud  is  an  act  or  word,  and  not  a  mere  state 
of  mind.  The  court  told  the  jury,  in  substance,  that  the  pur- 
pose in  Fenn's  mind,  at  the  time  of  the  jjassive  reception  of  the 
note,  could  convert  such  })assive  reception  into  an  active  tak- 
ing; and  that  a  felonious  intent  existing  in  the  mind  is  all  that 
is  necessary  to  nudio  the  reception  or  possession  a  sufHcient  tak- 
intr  to  constitute  theft.     This  was  erroneous. 

Fosti!)',  state's  attorney,  and  Doollttle,  contra,  cited  with  re- 
gard to  the  sulliciency  of  the  descrii)tion  of  the  note  in  the  in- 
formation, o  Chit.  Crim.  Law,  075;  1  Whart.  Crim.  Law,  ^^  317, 
355,  35S;  Conimomocdlth  v.  Jiio/ianls,  1  Mass.,  337,  and  jSuUs- 
bury  V.  The  State,  6  Conn.,  101;  and  as  to  the  otlense  being  lar- 
ceny, 2  Stark.  Ev.,  G07,  and  3  Greenl.  Ev.,  §§  157,  IGO. 


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392 


AJfERICAN  CRIMINAL  REPORTS. 


Phelps,  J.  The  defendant  moves  for  a  new  trial  for  a  verdict 
against  evidence,  and  for  tlie  admission  by  the  court  of  certain 
testimony  offered  by  tlie  state  and  objected  to  by  him;  and  also 
for  sundry  alleged  errors  of  the  court  in  its  instruction  to  the 

1.  We  are  satisfied  from  the  testimony  recited  in  the  motion 
that  the  verdict  is  not  so  manifestly  figainst  the  weight  of  evi- 
dence jiroperly  admitted  in  the  cause,  as  to  retjuire  us,  on  that 
ground,  to  set  aside  the  verdict. 

Tlie  state  was  l)ound  to  prove  the  felonious  intent  by  tlie  de- 
fendant at  the  time  of  tlie  taking  of  the  property,  that  it  was  of 
some  actual  and  intrinsic  valu  ;,  and  was  the  property  of  the 
person  named  as  owner  in  the  information,  and  that  it  was  ta- 
Iccu  by  the  defendant  either  secretly  and  without  the  hnowlod"-e 
of  the  owner,  or  openly  by  deception,  artifice,  fraud  or  force, 
and  with  the  design  then  entertained  to  deprive  the  owner  of  it 
and  secure  to  himself  some  personal  benefit  from  the  wrongful 
taking.  We  think  the  evidence  detailed  in  the  record  justified 
the  jury  in  finding  all  these  propositions  proved.  The  direct 
proof  of  the  value  and  ownership  of  the  note  was  not  in  itself 
necessarily  conclusive,  but  we  think  it  was  "^o  far  corrobonitfd 
l)y  the  circumstances,  and  especially  by  the  conduct  of  the  de- 
fendant, that  we  cannot  properly  say  the  verdict  with  respect  to 
those  allegations  was  unwarranted. 

2.  The  note  v.-as  proved,  on  the  trial,  to  have  been  payable 
Avith  semi-annual  interest,  .and  all  taxes  that  should  be  assessed 
on  the  amount  of  money  rc]>resented  by  it.  The  description  of 
it  in  the  information  omitted  these  particulars,  and  the  defend- 
ant objected  to  tlieevidence  (lescrij)tive  of  the  note,  on  the  ground 
of  a  material  and  fatal  variance. 

In  a  ])rosecution  for  theft,  the  property  alleged  to  liave  been 
stolen  must  be  described  with  substantial  accuracy,  so  tiiat  its 
identity  shall  be  uncjuestionablc  and  the  defendant  thereby  jiro- 
tected  from  another  prosecution  for  the  same  offense.  AVe  think 
that  it  was  reasonablv  done,  and  that  the  defendant  who  wron<r- 
fully  titok  the  note  and  destroyed  it  should  not  be  permitted  to 
say  it  was  not  described  with  the  utmost  particularity.  There 
is  nothing  in  the  circumstances  which  indicates  any  danger  of 
his  being  subjected  to  another  prosecution  by  reason  of  such  in- 
com])lete  description,  and  the  attorney  for  the  state  has  carefully 


^ 


STATE  V.  FENN. 


393 


inserted  in  one  of  the  counts  in  tlie  information  the  usual  aver- 
ment in  sucli  cases,  that  a  more  particuhir  description  of  the 
property  was  to  liim  unknown. 

A  similar  objection  was  taken  to  evidence  showing  the  precise 
form  of  tlie  indorsements  of  the  notes  by  the  payee  and  indorsee, 
on  tlie  ground  that  the  information  did  not  state  t\icyo)'m  of  the 
indorsement  by  the  payee,  or  that  the  indorsee  who  was  the 
owner  had  indorsed  it  at  all.  Sufficient  was  alleged  to  show  that 
the  title  passed  by  indorsement  from  tlie  payee  to  the  indorsee, 
and  as  the  latter  was  alleged  to  be  the  owner,  the  question 
whether  he  had  written  his  name  on  it  by  way  of  a  blank  in- 
dorsement without  delivery  could  not  in  this  case  be  material. 
The  question  was  one  of  title,  and  his  placing  his  name  for  the 
purpose  of  collection  on  the  back  of  a  note  payable  to  his  order 
would  not  afl'ect  that,  and  as  a  matter  of  mere  technical  form 
was  unimportant. 

3;  A  large  number  of  objections  are  taken  to  the  instructions 
given  by  the  court  to  the  jury.  Those  relating  to  the  question 
of  variance  between  the  infornuition  and  the  ])roof  arc  sufficiently 
noticed  ami  dispensed  of  in  what  has  been  already  said  with  refer- 
ence to  the  admissibility  uf  the  evidence  on  those  points.  The 
other  (juestiiins  made  relate  to  the  value  and  ownership  of  the 
note,  the  manner  it  was  taken  by  the  defendant,  and  the  intent 
with  which  it  was  done.  The  jury  were  required  to  find,  under 
the  instructions  given  them,  that  the  note  was  of  some  substan- 
tial value;  that  AVarner  was  the  owner  of  it  when  it  was  taken 
by  the  defendant;  that  the  taking  was  either  secretly  done,  or 
o]>enly,  by  fraud  or  force,  and  in  cither  mode,  with  the  felonious 
intent  to  (lei)rive  the  owner  of  his  property  in  it,  and  convert  it 
to  the  private  advantage  of  the  defendant.  On  all  these  points 
the  law  was  fully,  plainly  and  correctly  stated,  and  the  defendant 
has  no  just  reason  for  complaint. 

We  advise  the  superior  court  that  a  new  trial  be  not  granted. 

In  this  opiTiion  Fostkk  and  Pakdek,  J  J.,  concurred;  CAitrEX- 
TKu,  J.,  also  concurred,  but  with  hesitation.  Pakk,  C.  J.,  dis- 
sented. 


Note.  —  In  Ilihhbmnd  t\  People,  50  N.  Y.,  394,  which  was  a  prosecution 
for  larceny,  the  following  is  the  statement  of  facts  ami  the  decision  of  the  court 
by  CuuKoii,  C.  J.:    "  The  prosecutor  handed  the  prisoner,  who  was  bar-tender  in 


394 


AMERICAN  CRIMINAL  REPORTS. 


a  siUoon,  a  fifty  dollar  bill  (greenbiick)  to  take  ten  cents  out  of  it  in  paj-nicnt  for 
a  glass  of  soda.  The  prisoner  put  down  a  few  coppers  on  the  counter,  and  when 
asked  for  the  chaiijre,  he  took  the  prosecutor  by  the  neck  and  shoved  hini  out 
doors  and  kept  the  money. 

"  The  (ju  'stion  is  presented  on  behalf  of  the  prisoner  whether  larceny  can  ha 
predicated  upon  these  facts.  There  was  no  tiick,  device  or  fraud  in  uuluuinir  the 
l)rosi'cutor  to  deliver  the  bill;  but  wo  nnist  assume  that  the  jury  found,  inul  the 
evid(Mice  was  suflicient  to  justify  it,  that  the  prisoner  intended  at  the  time  he  took 
the  bill,  felouiously  to  convert  it  to  his  own  use. 

"  It  is  urged  tliat  this  is  not  sufficient  to  convict,  because  the  prosecutor  volun- 
taiily  parted  witli  the  possession  not  only,  but  with  the  property,  and  did  not  ex- 
pect a  return  of  the  same  property.  This  presents  the  point  of  tiu;  case.  Whrn 
the  possession  and  property  are  delivered  voluntarily,  without  fraud  or  ariitice  to 
induce  it,  the  (iiiinnis  fiirainli  will  not  make  it  larci;ny,  because  in  such  a  case 
there  can  be  no  trespass,  and  there  can  Ije  no  lan.-miy  witliout  trospii.-s  (4:{  N.  Y., 
61).  But  in  tiiis  case  I  do  not  tlunk  the  prosecutor  should  bo  deemed  to  hiivo 
parted  i.'ither  with  the  possession  of,  or  property  in,  the  bill.  It  was  an  incom- 
plete transaction  to  be  consumunited  in  the  i)resence  and  under  the  jiersonal  cdu- 
trol  of  th(!  prosecutor.  There  was  no  trust  or  confidence  reposed  in  tin;  ijrisdmr, 
and  none  inti.'nded  to  be.  The  delivery  of  the  bill  and  the  giving  change  were  to 
be  sinmltaneous  acts,  and  until  the  latter  wiis  paid,  the  delivery  was  not  complcti'. 
The  la'osecutor  laid  his  bill  upon  tht;  counter,  and  impliedly  told  tiie  prisoniT  tluit 
he  could  have  it  upon  delivering  to  him  $49.90.  Until  this  was  done  neither  pos- 
session nor  property  passe<l;  and  in  the  mean  time  the  bill  remained  in  le^^'idcon- 
templation  under  the  control  and  in  the  possession  of  the  prosecutor."  It  wiid 
accorduigly  held  that  the  facts  stated  were  suHicient  to  sustiuu  a  conviction  fur 
liU'ceny,  and  judgment  was  affirmed. 

In  I'cojilc  r.  Call,  1  Denio,  1"20,  the  defendant  took  a  promissory  note  to  indorse 
a  payment  of  interest  upon  it,  in  the  presence  of  tiu;  owner  of  the  note,  and  tliru 
•carried  it  ofl',  iiud  it  was  held  that  he  was  rightly  convicted  of  larceny.  In  Cdhi. 
v.  M'ildi;  'i  (iray,  s:?,  where  a  shoi)m;iu  phieed  some  clothing  in  tiie  luuuls  of  a 
custonu'r,  but  did  not  consent  that  ho  should  take  it  away  fi'om  the  shop  till  he 
fchould  have  made  a  Itargain  witli  theowni'r,  who  was  inanotluT  part  of  tlifsinip, 
his  cairying  it  oil'  was  licld  to  be  larceny,  in  Vuuijlntn  r.  Com.,  10(iriif.,  7"i'^, 
the  facts  were  as  follows:  The  prisoner  had  executeil  a  bond  for  .^25.00  wliirh 
became  tl:e  jjroperty  of  one  Keyser.  Tin-  prisoner  told  Keyser  tiiiit  he  would  jiiiy 
it  if  lie  woulil  bring  it  with  him  to  a  certain  religious  mi'eting  which  Ijoth  expt'ctnl 
to  attend.  They  met  at  the  api)ointed  tim(\  and  the  j)risoner  taking  the  bond  in- 
to his  hands,  us  Keyser sui)iiosed  to  examine  it,  imnu'diately  destroyed  if.  'Jiieii; 
\va.s  evidence,  fo  show  tliat  the  jirisoner  thought  himself  imjnstly  treated  in  tlie 
matter  in  which  the  bond  was  given.  Ililil  tliat  he  was  rightly  convicted  of  lai'- 
ceny.  So  in  FaffrU  r.  I'eii/ilc,  10  III.,  -tOC},  where  tla;  evidence  showed  tiiat  eiie 
Ilemiis,  about  midnight,  gave  Farrell,  who  wius  a  buck  driver,  a  five  dulliir  Iiili  to 
be  changed,  in  order  that  llennis  might  i)ay  Farrell  twenty-five  cents,  and  I'lir- 
rell  did  not  retinni  with  the  bill  or  the  change  for  it,  it  wius  held  that  he  was  rightly 
Convicte(l  of  larceny. 

So  in  lifij-  '••  Mi'ldlclon,  12  Cox,  C.  C,  200,  417  (S.  C,  1  Green  Crim.  Cas.  4), 
it  npeai'ed  that  a  depositor  in  a  post  office  savings  bank  obtained  a  wamuit  for 
the  withdrawal  of  lUs'.,  and  presented  it  with  his  depositor's  book  to  a  clerk  at 
the  post  office,  who,  instead  of  referring  to  the  proper  letter  of  advice  for  lU*.,  re- 


STATE  I'.  FENX. 


395 


feiTCil  by  mistake  to  another  letter  of  advice  for  8?.,  16s.,  lOd.,  and  placed  that 
?uin  upou  the  counter.  The  clerk  entered  8?.,  IGs.,  10(Z.  in  the  depositor's  Ixjok 
as  paid,  and  stamped  it.  The  depositor  took  up  that  sum  and  went  away.  Tlio 
jury  found  that  he  had  the  aininus  funindi  at  the  moment  of  taking  the  money 
from  tiie  counter,  and  that  he  knew  the  money  to  be  the  money  of  the  postmaster 
gwieral  when  ho  took  it  up,  and  found  him  guilty  of  larceny.  It  waa  held  by 
eleven  of  the  fifteen  judges  who  sat  on  the  case  that  he  was  properly  convicted  of 
larceny.  Fom-  of  the  judges  dissented  on  the  ground  that  the  money  was  not 
taken  bidio  doDiiito  and  therefore  there  was  no  larceny. 

In  Ii'i'!/.  r.  SJonlij,  12  Cox  C.  C,  2G9  {S.  C.  1  Green  Crim.  Cas.,  30),  it  appeared 
tliat  the  prosecutor  sold  onions  to  the  prisoner,  who  agreed  to  pay  ready  money 
for  tiiem.  The  onions  were  unloaded  at  a  place  inchcated  by  the  prisoner,  and 
the  prosecutor  was  then  induced  to  make  out  and  sign  a  receipt  which  the 
])visoner  got  from  him,  and  then  refused  to  restore  the  onions  or  pay  the  price. 
Tlie  jury  convicted  tlie  prisoner  of  larceny,  and  said  that  he  never  intended  to  pay 
for  the  onions,  and  that  the  fraud  was  meditat«;d  froiii  the  beginnuig.  It  was 
held  that  the  conviction  was  right. 

In  Cwii.  r.  Cinicannou,  5  Allen  (Mass.),  502,  it  appeared  that  a  mortgagee  had 
sent  tiie  mortgage  to  the  register  of  deeds'  ottico  for  record,  but  had  not  sent  the 
fees,  and  tlicrcfore  it  was  not  recorded.  The  mortgagor,  coming  into  the  office, 
was  informed  by  a  clerk  that  the  mortgage  had  been  sent  in  for  record.  He  told 
the  clerk  that  he  had  been  unfau-ly  treated  about  the  mortgage,  and  said  that  ho 
(lid  not  want  it  recorded.  The  clerk  then  handed  him  the  mortgage  and  asked 
him  to  talie  it  to  the  mortgagee.  He  never  delivered  the  mortgage  to  the  mort- 
gagee, and  on  these  facts,  was  indicted  for  embezzlement.  On  the  tritd  there  was 
evidence  to  show  that  the  mortgagor  did  not  owe  the  full  amount  of  money  named 
m  tlie  mortgage.  It  appeared  also  on  the  pait  of  the  defendant,  that  he  had 
been  advised  by  his  attorney  to  place  the  mortgage  m  the  hands  of  a  third  person 
for  safe  keeping,  until  it  tx)ulil  be  settled  to  whom  it  fau'ly  belonged,  imd  that  lie 
had  done  so.  In  reply  to  this,  evidence  was  allowed  to  be  introduced,  under  ob- 
jection, to  show  that  in  the  mean  time  the  defendant  had  ma<Ie,  and  jiut  upon 
record,  a  deed  of  the  estate  to  a  third  person,  making  no  resei-vation  in  relation 
to  the  mortgage.  On  this  evidence  the  trial  judge  instructed  the  ;""'y  that  if  the 
defendant  reasouiiljly  and  in  good  faith  believed  that  he  was  entitled  +o  keep  the 
mortgage,  he  was  not  guilty  of  emljezzlement,  however  unfounded  his  behef  might 
be,  but  if  he  knew  that  the  mortgage  was  the  property  of  the  mortgagee,  the  fact 
that  he  tliought  it  was  unjust  and  ought  not  to  be  enforced  did  not  prevent  his 
act  amounting  to  oml>uzzlemcut,  if  at  the  time  he  received  it  he  had  the  intent  to 
deprive  the  mortgagee  of  it  permanently.  The  defendant  was  convicted  and  the 
evidence  was  IwUI  sutKcient  to  support  the  conviction,  and  the  instructions  coiTcct. 
Hut  in  Sttitc  c.  Deal,  04  N.  C,  270,  where  it  appeared  that  the  maker  of  a  note, 
who  had  complained  that  he  had  not  Ijeen  fairly  dealt  with  in  the  transaction  in 
which  the  note  was  given,  went  to  the  holder,  and  after  proposing  to  iiay  it  in 
cotton,  which  was  refused,  asked  to  see  it,  and  upon  its  being  delivered  to  him 
by  the  liolder,  kept  possession  of  it,  saying,  "  You  won't  get  it  again;"  and  upon 
a  struggle  ensuing,  snatched  up  an  axe,  retreated  to  liis  horse,  and  then  rode  off, 
adding,  "  Tom  (the  holder's  son,  and  as  surety  to  the  note)  sent  me  word  to  get 
the  note  as  I  could,"  it  was  liehl  there  was  no  larceny. 


it 


396 


AMERICAN  CRIMINAL  REPORTS. 


^u 


The  Queen  vs.  Gtjmble. 
(2  Cro\vn  Cases  Reserved,  1.) 

Larceny:    Indictment  —  Amendment  —  Money — li  and  15  V!c.,  cU.  100,  sees. 

1,  18. 

The  prisoner  was  imlictod  for  stealin<?  nineteen  shillings  anil  sixpence.  Ho  was 
proved  to  have  stolen  a  sovereign:  JIvhl,  that  by  14  and  15  Vie.,  eh.  100,  sec. 
1,  the  court  at  the  trial  had  jjowcr  to  amend  tlie  indictment,  if  net:essary,  by 
substituting  the  word  "  money '"  for  the  words  "  nuieteeu  and  sixpence," 
and  that  by  sec.  18,  the  indictment  so  amended  was  proved. 

Cask  stated  l>y  tlie  cliairman  of  tlic  Sun'ei/  Quarter  Session. 

At  tlic  ifcneral  quarter  session  of  the  peace,  lioldcii  by  coiitiu- 
uance  at  St.  ]\rary,  ^  „*vington,  in  and  for  tlic  county  of  Surrey, 
on  the  3d  of  July,  LSTii,  James  Gunible  was  indicted  for  steal- 
ing, on  the  I'Oth  of  May,  1S72,  nineteen  shillings  and  sixpence, 
from  "William  Jackson  Walton. 

The  ])rosecutor  had  been  playing  at  throwing  sticks  at  cocoa 
nuts  on  Kpsom  Downs,  and  had  to  pay  the  prisoner  si xpento,  but 
liaving  nothing  less  than  a  sovereign,  he  said  to  the  ]>ris(iiier, 
*'  Have  you  change  for  a  sovereign?''  The  prisoner  said,  "  Yes," 
and  in  conscfpience  of  that,  prosecutor  giive  him  a  sovereign,  lie 
then  pulled  some  money  out  of  his  pocket,  and  said,  "  I  have  n't 
enough,  I'll  go  aiid  get  it  for  you;  I  won't  be  a  minute,  just  wait 
here."  The  prosecutor  waited  nearly  an  hour  for  the  prisoner, 
and  then  went  for  a  jwliceman,  leaving  a  friend  who  had  Ikcii 
with  him  all  the  time  to  wait  for  the  prisoner.  This  he  did  for 
(juite  another  hour  after  the  prosecutor  went  for  a  policeman. 
The  prisoner's  son  removed  the  sticks  and  cocoa  nuts  at  the  ex- 
piration of  the  first  hour.  The  prisoner  did  not  return,  and  was 
not  apprehended  nntil  the  following  Saturday,  the  1st  of  June, 
on  which  occasion  when  he  saw  the  prosecutor's  friend,  he  im- 
mediately ran  away,  and  was  only  captured  after  a  chase  of  sonic 
distance.     On  his  apprehension,  4?.,  10.?.,  was  found  on  him. 

It  was  objected  liy  the  prisoner's  counsel  that  there  was  no 
case  against  the  ])risoner,  for  if  he  were  guilty  of  any  ofl'ense, 
he  was  guilty  of  stealing  a  sovereign,  and  that  the  court  had  no 
power  to  amend  the  indictment. 

The  court  allowed  the  case  to  go  on,  and  put  it  to  the  jury, 


THE  QUEEN  v.  GUMBLE, 


Zd7 


tluat  if  they  believed  that  the  prisoner,  at  the  moment  of  obtain- 
ing the  sovereign,  intended  by  a  trick  feloniously  to  deprive  the 
prosecutor  of  the  possession  of  the  sovereign,  they  were  to  find 
him  guilty.  They  found  him  guilty,  and  then  the  question  were 
reserved  for  the  decision  of  the  Court  for  Crown  Cases  Keserved, 
as  to  whether  the  prisoner,  being  found  guilty  of  stealing  a  sov- 
ereign, could  rightly  be  convicted  under  an  indictment  charging 
him  with  stealing  nineteen  shillings  and  sixpence,  and  also, 
whether  the  court  would  have  had  the  power  to  amend  the  in- 
dictme"*"  •  t  an  earlier  stage  of  the  case. 

Ko  counsel  appeared  for  the  prisoners. 

Jo/in  Tliomjyson,  for  the  pi'osecution. 

If  therc  be  any  variance  between  the  indictment  and  the  proof, 
the  indictment  might,  by  1-t  and  15  Vict.,  ch.  1,  sec.  1,'bo 
amended  by  inserting  the  word  "  money,"  as  the  description  of 
the  thing  stolen.  That  would  make  the  indictment  good  within 
sec.  18,  and,  upon  the  case  as  stated,  this  amendment  must  be 
taken  to  have  been  made  at  the  trial  before  verdict. 


Kelly,  C.  B.  AVe  are  all  of  the  opinion  that  there  was  power 
to  amend,  if  any  amendment  be  necessary;  and  that,  on  the  case 
as  stated,  we  must  take  that  to  have  been  done,  if  it  be  necessary. 

Maktix,  B.  I  think  there  was  power  to  amend,  and  that  may 
be  done  by  altering  the  description  to  "  money  "  simply,  which 
makes  the  conviction  ijood. 


I 


EuETT,  J.    The  defect,  if  there  be  one,  is  one  of  description, 

'By  14  anil  15  Vict.,  ch.  100,  soc.  1:  "  Whenever,  on  the  triiil  of  any  indict- 
ment for  any  felony  or  niisUenieanor,  there  shall  appear  to  be  any  variance  '  j- 
tween  the  statement  in  huch  indictment  and  the  evidence  offered  in  proof  thereof 
...  .in  the  name  or  description  of  any  matter  or  thing  whatsoever  therein  named 
or  described,. . .  .it  shall  and  may  bo  lawful  for  the  court  before  which  the  trial 
shall  be  had. . .  .to  order  such  indictment  to  be  amended. ..." 

15y  sec.  18 :  "  In  every  indictment  in  which  it  shall  bo  necessary  to  make  any 
averment  as  to  any  money,  or  any  note  of  the  IJank  of  England,  or  of  any  other 
bank,  it  shall  be  sufficient  to  describe  such  money  or  bank  noto  simply  as  money, 
^vithout  specifying  any  particular  coin  or  bank  note;  and  such  allegation,  so  far 
as  regards  the  description  of  the  property,  shall  be  sustained  by  proof  of  any 
amount  of  coin  or  of  any  bank  notes,  although  the  particular  species  of  coin  of 
which  such  amount  was  composed,  or  the  pivrticular  nature  of  the  bank  note,  shall 
not  be  proved...." 


i 


308 


AMERICAN  CRIMINAL  REPORTS. 


and  may  be  ainciuled  by  describing  the  things  stolen  as  "  money." 
And,  on  the  case,  we  must  take  this  amendment  as  made  before 
verdict. 

Grovi:  and  Quain,  JJ.,  concurred. 

Conviction  affirmed. 

Attorneys  for  prosecution,  lioger'S  db  Sons. 


State  vs.  Davis. 
(:38  N.  J.,  176.) 

Larceny:    Evhlence  —  Animus  furanili. 


On  a  prosecution  for  stoalinj?  a  horse  and  cairiago,  evidence  that  respondent,  x 
younjj  man,  jiassing  along  the  street  late  at  night,  seeing  the  liorse  and 
camaire  standing  in  front  of  the  owTier's  house,  got  in  an<l  drove  olV,  and 
that  the  horse  ami  caniage  were  foiuid  aliandoned  in  tlie  road  next  day  si'v- 
eral  miles  from  when;  they  were  taken,  the  hoi"se  much  exluuwted  from 
driving,  and  tliat  respondent  gave  no  notice  to  i\w  owner  or  to  any  one 
where  they  might  be  found,  is  sufficient  to  sustain  a  verdict  of  guilty. 

Fraudulently  taking  the  personal  property  of  another  without  his  consent,  with 
a  felonious  intent  to  dejirive  him  wholly  of  his  property,  although  the  takfr 
designs,  himself,  to  make  liut  a  temporary  use  of  the  property,  is  suilicii'ut 
evidence  of  the  felonious  intent  required  to  constitute  the  crime  of  larceny. 

ScuppKR,  J.  The  defendant,  who  is  quite  young,  in  ])assiiig 
along  the  street  near  niitlnight,  February  ±1,  1875,  saw  the  car- 
riage of  Dr.  Charles  IFodge,  Jr.,  standing  in  front  of  liis  resi- 
dence. He  and  a  companion  took  the  horse  and  carriage,  drove 
rapidly  away  in  a  reckless  maimer,  and  about  ten  o'clock  tl;e 
next  day  the  horse  and  carriage  were  found  abandoneil  several 
miles  away  from  where  they  were  taken.  They  were  foun<l  in 
the  road,  the  horse  much  exhausted  from  driving  and  want  of 
food.  The  ])risoner  did  not  return  the  horse  and  wagon  to  the 
owner,  or  make  any  effort  to  do  so,  or  apprise  anyone  where  they 
could  be  found,  or  to  whom  or  where  they  belonged,  lie  di<l 
not  even  put  them  in  some  secure  place,  where  the  owner  might 
find  them.  These  acts  were  perfectly  consistent  with  an  intent 
originally  to  deprive  the  owner  of  his  property;  but  finding 
them  a  dangerous  possession,  and  becoming  frightened,  they 


STATE  V.  DAVIS. 


399 


were  abanrlonecl  when  detection  became  imminent.  His  conduct 
was  utterly  reckless  of  the  riglits  of  the  owner;  but  was  it  crim- 
inal, and  does  it  sustain  the  finding  that  he  was  guilty  of  lar- 
oeny  ? 

The  principles  which  must  determine  this  case  are  fully  dia- 
cHSsod  by  Chief  Justice  Green,  in  Siate  v.  Soitth,  4  Dutch.,  28, 
and,  as  is  his  wont,  he  leaves  but  little  to  find  on  the  subject,  for 
those  who  come  after  him  as  gleaners. 

The  qucs*tion  in  the  case  was,  whether  the  fraudulently  de- 
priving the  owner  of  the  temporary  use  of  a  chattel  can  consti- 
tute larceny  at  the  common  law;  whether  the  felonious  intent, 
or  aniimis  farandi,  may  consist  M'ith  an  intentictn  to  return  the 
chattel  to  the  owner.  It  was  there  held,  that  if  the  property 
was  taken  with  the  intention  of  only  using  it  temporarily,  and  then 
returning  it  to  the  owner,  it  is  not  larceny;  but  if  it  appear  that 
the  goods  were  taken  with  the  intention  of  permanently  depri- 
ving the  owner  of  his  property,  then  it  is  larceny,  and  that  this 
intent  is  a  fact  to  be  decided  by  the  jury  from  the  evidence. 

The  question  therefore,  in  this  case  is,  whether  there  are  facts 
phown  from  M'hicli  a  jury  should  infer  that  it  was  the  intention 
of  the  defendant  to  permanently  deprive  the  owner  of  his  prop- 
erty. 

A  man's  intention  must  be  judged  by  his  acts  and  expres- 
sions; and  it  is  manifested  by  circumstances  that  vary  with  al- 
most every  case  that  is  presented  for  consideration.  The  gener- 
al rule  to  determine  what  he  intends  by  his  acts  is,  that  a  man 
intends  that  consequence  which  he  contemplates,  and  which  he 
c\i)ects  to  result  from  his  act,  and  he  therefore  must  bo  taken  to 
intend  every  consequence  which  is  the  natural  and  immediate 
result  of  any  act  which  he  voluntarily  does.     2  Stark.  Ev.,  573. 

When,  liy  the  voluntary  act  of  this  defendant,  the  horse  and 
carriage  were  loosed  from  their  hitching  place  in  front  of  their 
owner's  door,  and  driven  away  in  the  night,  and  after  many 
miles  and  hours  of  reckless  driving,  were  left  in  the  public  road, 
did  the  taker  contemplate,  and  was  the  natural  and  immediate 
consequence  which  he  should  be  presumed  to  contemplate  at  the 
time  of  taking,  that  the  owner  would  be  permanently  deprived 
of  his  property? 

It  is  not  his  intention  at  the  time  of  the  abandonment,  but 
the  purpose  at  the  time  of  the  taking  that  we  must  seek;  for  an 


u 


iLil^^^HV 

iafflP 

&|^H^H  ii 

mi'' 

MHIiBiJi 

['-'  'jjiyH ' 

ii^^^H 

400 


AMERICAN  CRIMINAL  REPORTS. 


article  may  l)e  tiilcen  with  intent  to  steal,  and  afterwards  iiLau- 
doned  on  i)nrsuit,  or  from  a  mere  change  of  i)nriJ08e,  yet  tlie  tak- 
ing will  be  larceny.  I  think  that  fraudulently  taking  tlieper.suu- 
al  propert}-  of  another  without  his  consent,  and  with  no  intent 
at  the  time  of  taking  to  return  the  same,  is  evidence  of  such  in- 
tent to  deprive  the  owner  of  his  property;  that  a  jury  nut  unly 
eonld,  but  should  fiiul  the  taker  guilty  of  larceny. 

It  is  not  a  Tuere  tem])()rary  taking  which  may  consist  with  an 
intent  to  return,  but  a  taking  what  may  result  by  a  natural  and 
immediate  consequence  in  the  eiitire  loss  and  deprivation  of  the 
property  to  the  owner.  An  abandonment  to  mere  chance  is 
such  reckless  exposure  to  loss,  that  the  guilty  party  should  be 
lield  criminally  responsible  for  an  intent  to  lose. 

If  a  person  tnke  another's  watch  from  his  table,  with  n(^  in- 
tent to  return  it,  but  for  the  purpose  of  timing  his  walk  to  the 
station  to  catch  a  train,  and  when  he  reaches  there,  leaves  it  on 
the  seat,  for  the  owner  to  get  it  back  or  lose  it,  as  may  happen; 
if  a  man  takes  aiiother's  axe  with  no  intent  to  return  it,  but  to 
take  it  to  the  woods  to  cut  trees,  and  after  he  has  finished  his 
work,  cast  it  in  the  bushes,  at  the  owner's  risk  of  losing  it,  such 
reckless  condu-ct  would  be  accounted  criminal.  It  is  true  that 
the  probability  of  tinding  the  horse  and  wagon  may  be  greatur 
than  that  of  recovering  the  watch  or  axe,  because  they  are  largrr 
and  more  diiHcult  to  conceal,  but  the  intent  is  not  to  be  moa>- 
nred  by  such  nice  probabilities,  rather  l)y  the  broader  probabili- 
ty that  the  owner  may  lose  his  property,  because  the  taker  has 
no  purpose  of  ever  returning  it  to  him. 

The  cases  that  are  most  frequently  cited  in  opposition  to  this 
view  are,  PhlUips  t6  Stronrfs  Case,  2  East  V.  C,  ch.  IH,  §  1>S. 
Here  the  horses  were  taken  to  and  in  a  journey,  and  left  at  an 
inn.  The  jury  found  the  prisoners  guilty,  but  added  they  were 
of  opinion  that  the  persons  meant  merely  to  ride  them  to  Leeds- 
dale  and  leave  them  there,  and  that  they  had  no  intention  to  re- 
turn them  or  to  make  any  further  use  of  them.  The  court  said 
that  if  the  jury  had  found  the  prisoners  guilty  generally  upon 
the  evidence,  the  verdict  could  not  have  been  questioned,  but  as 
they  found  specially  from  the  facts  that  there  was  no  intention 
in  the  prisoners  to  change  the  property,  or  make  it  their  own, 
but  only  to  use  it  for  a  special  purpose  to  save  their  labor  in 
traveling,  it  was  only  a  trespass  and  not  a  felony.     The  express 


STATE  r.  DAVIS. 


iibau- 
lio  tak- 

intent 
cli  ill- 
•t  only 


401 


intention  found  was  inconsistent  with  the  general  finding.  Yet 
the  facts  were  suiTicient  to  sustain  a  general  verdict  of  guilty  of 
larceny.  The  court  were  divided  on  the  effect  of  this  special 
finding. 

In  Hex  V.  Crump,  1  C.  &  P.,  C5S  (11  E.  C.  L.),  the  prisoner 
took  a  horse  with  other  property,  and  after  going  some  distance 
turned  the  horse  loose,  proceeded  on  foot  and  attemjited  to  dis- 
pose of  tlie  other  property.  It  was  left  to  the  jury  to  say  whether 
he  intended  to  steal  the  horse  or  to  use  him  to  carry  off  the 
plunder.  He  was  found  not  guilty  of  stealing  the  horse,  and 
guilty  of  stealing  the  other  property. 

It  was  said  that  he  distinctly  manifested  his  purpose  of  con- 
verting the  other  articles  to  his  own  use  by  ollerlng  tliem  for 
sale.  It  is  odd  that  such  a  nice  distinction  and  division  of  in- 
tention should  be  nuide  dependent  on  the  kind  of  property  taken 
at  the  same  time. 

Lord  Dknman  said,  in  Eegina  v.  Ilolloioay,  that  if  a  man 
took  another's  horse  without  leave,  intending  to  ride  it  at  every 
fair  in  England  (which  would  take  him  a  year),  and  then  return 
the  horse  at  the  end  of  that  time,  it  would  not  be  larceny.  This 
was  the  statement  of  an  extreme  case  by  way  of  illustrating  a 
principle,  and  there  was  here  a  purpose  to  return  to  the  owner. 

In  Jtex  V.  Othhage,  It.  &  R.  C.  C,  20i?,  the  prisoner  went  to  a 
stable  door,  forced  it  ojien,  took  the  horse  out,  went  some  dis- 
tance along  the  road  until  he  came  to  a  coal  pit,  and  then  backed 
the  horse  in  the  pit,  where  he  was  found  dead.  It  was  held  that 
it  was  not  essential,  to  constitute  the  offense  of  larceny,  that  the 
taking  sliould  be  lueri  canm',  tluit  taking  fraudulently,  with  an 
intent  wIkiHv  to  deprive  the  owner  of  the  property,  was  suffi- 
cient, and  the  ju'isoner  was  convicted. 

These  cases  will  be  sufficient  to  illustrate  the  principles  and 
distinctions  upon  which  this  case  will  be  decided. 

It  is  conceded  that  the  law  is  settled  with  us  according  to  the 
rule  of  the  common  law,  and  the  approved  definition  of  larceny, 
given  by  Mr,  East  in  East's  P.  C,  ch.  10,  §  1,  where  it  is  said 
to  be  "  the  wrongful  or  fraudulent  taking  and  carrying  away,  by 
any  person,  of  the  mere  personal  goods  of  another  from  any 
place,  with  a  felonious  intent  to  convert  them  to  his  (the  taker's) 
own  use,  and  make  them  his  own  property,  without  the  consent 
of  the  owner."  And  it  has  been  uniformly  held  that  the  feloni- 
YoL.  I.— 26 


n 


1 


403 


AMERICAN  CRIMINAL  REPORTS. 


^v. 


I 


i'f 


ous  intent  must  manifest  a  purpose  to  deprive  the  owner  wlhjlly 
of  his  property. 

Tlie  definition  given  by  EviiE,  I'.,  Pear'^s  Case,  East's  1*.  C,  cli. 
16,  §  12,  that  larceny  is  the  wrongful  taking  of  goods  with  in- 
tent to  spoil  the  owner  of  them  cdimi  Iticri,  would  seem  ti>  I'o 
too  narrow,  because  the  law  considers  not  oidy  and  always  the 
effect  of  gain  to  the  taker,  as  an  essential  to  the  crime,  but  also 
the  deprivation  to  the  owner  of  his  property.  Either  will  ho 
BufKcient  in  the  evidence  of  larceny.  2  Arch.  Cr.  l*r.  »fc  PI., 
3S9-392. 

It  is  interesting,  however,  to  notice  the  broader  definition  of 
theft  or  larceny  in  the  civil  law,  and  how  nearly  it  accords  with 
the  efforts  to  reach,  by  criminal  punishment,  the  reckless  tempo- 
rary use  and  abuse  of  the  property  of  others,  by  taking  from  an 
owner  who  does  not  consent. 

Jtif<t.  Jitft.y  lib.  4,  tit.  1,  thus  defines  it:  J*\irtu}/i  est  con- 
trectat'to  ft'duihdosa,  lucrl  fac'iendi  gratia.,  vel  ipnins  rei,  vcl 
etiam  xtsus  ejus,  jyossessionisve/  quod  legi  naturali  jyrohihitnui 
est  ftdmitfei't'.^^  Thus,  not  only  the  fraudulent  taking  of  tlie 
thing  itself,  but  the  using  and  jjossessing  anything  by  fraud  for 
the  sake  of  gain,  was  theft  by  the  civil  law.  JJut  this  does  not 
agree  with  the  law  as  settled  in  our  common  law  courts,  and  the 
taker  must  intend  to  deprive  the  owner  wholly  of  his  pruj)erty. 

This  is  the  concUision  to  which  Chief  Justice  Gkkkx  came,  as 
it  ap]>ears  reluctantly,  in  the  case  of  T/ie  /State  v.  Sont/i,  and 
against  which  Judge  SuAitswooo  protests  in  the  note  to  Queen  v. 
IMhnrdij,  1  Den.  C.  C,  370,  reasoning  strongly  for  n\\  exten- 
sion of  the  definition  of  la:  »eny. 

Doubtless  the  severe  punishment  of  felony  under  the  old  En- 
glish law  has  led  to  this  more  restricted  construction,  but  the 
lighter  penalties  •which  now  are  inflicted  would  seem  to  make 
an  extension  of  the  crime  of  theft  or  larceny  desirable,  even  to 
the  limits  of  the  civil  law  definition. 

There  has  been  no  case  decided  in  this  state  that  has  held  that 
where  the  taker  had  no  intention  to  return  the  goods  the  taking 
was  merely  temporary.  Xor  is  there  anything  that  should  con- 
trol the  action  of  a  jury,  or  the  court  acting  as  such  under  the 
;;tatute.  when  they  find  that  the  party  having  no  such  intent  is 
guilty  of  larceny.  It  would  be  most  dangerojis  doctrine  to  hold 
that  a  mere  stranger  may  thus  use  and  abuse  the  property  of  an- 


REGINA  I'.  HKNNKSSY. 


403 


other,  ami  leave  him  the  bare  chance  of  recovering  it  by  careful 
pursuit  and  search,  without  any  criminal  responsibility  in  the 
taker. 

The  court  of  quarter  sessions  are  advised  that  the  verdict  is 
right,  and  should  not  be  disturbed. 

NoTK.  — In  McCourt  r.  People,  Gl  N.  Y.,  oi^H,  tlocidotl  in  the  Now  York  court 
of  iippoala,  April,  1876,  the  facts  were  as  follows:  The  respondent,  with  two 
othei's,  stopped  at  a  house  where  he  had  before  procured  cider  and  asked  the 
tliiufe'liter  of  the  i)rosecutor  to  sell  him  some  cider.  She  refused.  The  respondent 
said  he  would  have  some  anv  way,  and  in  defiance  of  an  express  prohibition,  went 
into  the  cellar  and  drew  some  cider  in  a  pail,  which  was  taken  away  from  him 
by  one  of  those  who  came  with  him  before  he  left  the  premises.  Kesjjondent  was 
piutially  intoxicated  at  the  time.  It  was  luhl  that  on  these  facts  there  was  no 
liU"ceny  and  the  respondent  was  entitleil  to  a  positive  ilii-ection  to  the  jmy  t  o  ac- 
quit. The  court  say  "  There  was  an  absence  of  the  cu-cumstances  which  ordinar- 
ily attend  the  commission  of  a  larceny  and  which  distmj,niisli  it  fi'om  a  mere 
trespass.  There  was  neither  fraud,  stratagem  nor  stealth.  The  value  of  the  cider 
which  he  intended  to  tiike  was  trivial,  and  the  whole  transaction  was  open,  m 
the  day  time,  and  in  the  presence  or  ^^-ithin  the  observation  and  knowledge  of  the 
pros(.'cutor"s  daughter.  *  *  *  We  cannot  sustain  the  conviction,  without  con- 
founding the  distinction  between  criminal  acts,  and  such  as,  however,  reprehen- 
silile,  uivolve  only  a  violation  of  private  rights,  and  uyurics  for  which  there  is  a 
remedy  only  by  civil  action. 

"The  refusal  of  the  court  to  direct  an  acquittal  was  eiTor,  for  which  the  convic- 
tion should  be  reversed." 


Regina  vs.  IIknnessv. 

(;!•■)  r.  C.  Q  B.,  G0;5.) 

LAitcE>;Y  IN  THE  Unitkd  Statks:     Coiiriction  in  Canada  —  32-33  Vic,  ch. 

HI,  sec.  112,  D. 

The  prisoner,  being  the  agent  of  the  American  Express  Company  in  the  state 
of  Illinois,  recitived  a  sum  of  money  which  had  been  collected  by  them  for  a 
customer,  and  put  it  into  their  safe,  l)ut  made  no  entry  of  its  receipt  in  their 
books,  as  it  was  his  duty  to  do.  and  afterwards  absconded  with  it  to  this 
province,  where  he  was  avicsted.  Ilehl.  that  he  was  guilty  of  larceny,  and 
wius  properly  convicted  here  under  '\2-'S'-]  Vic,  ch.  2,  sec.  112,  D. 

Criminal  Case  reserved.  The  prisoner  was  tried  and  con- 
victed l)efore  Eitrton,  J.,  at  the  last  York  Assizes,  under  the 
statute  32-33  Vic,  cii.  21,  sec.  112,  D.,  for  bringing  into  Canada 
or  having  in  his  possession  therein  certain  property  stolen  in  the 


It  l\ 


404 


AMERICAN  CHIMINAL  RKPORTS. 


r-  1[,  ►^ 


i>    i 


state  uf  Illinois,  one  of  the  United  States  of  America,  in  such 
manner  tliat  the  stealing  or  obtaining  it  in  a  like  manner  in 
Canada  wonld  by  the  laws  of  Canada  bo  a  felony  or  misdu- 
meanor. 

The  indictment  contained  tlirec  counts,  one  charging  him  with 
liaving  stolen  the  property  in  a  foreign  country,  and  8\ibse([iieiit- 
]y  bringing  it  into  Canada,  the  second  with  having  so  stolen  it 
and  8ubtie4uently  having  it  in  Canada;  and  the  third  for  larceny 
in  Canada. 

The  evidence  disclosed  that  the  prisoner  was  on  the  3d  .July 
hvst  the  agent  of  the  American  Express  Company  at  AVinona  in 
the  state  of  Illinois,  and  that  on  that  day,  at  about  2  1'.  ^[.,  one 
Charles  Ames,  a  grain  buyer  there — and  having  a  branch  house 
at  Long  Point,  in  the  same  state,  at  which  j)lace  one  Taggart  wjh 
his  agent,  having  occasion  to  remit  to  his  agent,  ])ut  up  .^Too  in 
United  States  currency  or  greenbacks  in  an  envelope,  and  took  it 
to  the  office  of  the  said  express  company  at  Winoiui,  and  delivered 
the  package  to  the  prisoner,  who  sealed  it  up,  the  money  hav- 
ing been  put  U])  into  theenvelope  in  his  presence,  and  then  sealed 
wp  by  him,  and  he  gave  a  receipt  for  it  and  the  package  so  sealed 
was  adressed  to  the  agent  Taggart  at  Long  Point,  who  was  at  the 
same  time  advised  by  post  and  telegraph  of  the  money  having 
been  sent;  aiul  this  course  of  dealing  had  prevailed  for  soiuu 
time  previously. 

Ames  was  advised  by  his  agent  that  the  money  had  not  arrived, 
and  he  called  at  the  exju'ess  office,  but  the  prisoner  had  then  left, 
and  lie  uever  saw  him  afterwards,  until  he  was  in  custody. 

The  evidence  further  disclosed,  that  another  parcel  had  been 
sent  down  for  ccdlection  through  tlie  American  Express  Company 
at  Winona,  on  some  one  at  Layton,  and  was  sent  to  the  United 
States  Express  Company  at  that  place,  who  collected  ^5,7:iti,  in 
greenbacks,  and  remitted  to  their  agent  at  Winona,  who  received 
it,  and  handed  it  to  Mv.  Dennis,  a  clerk  of  the  ]>risoner,  in  his 
presence,  in  the  office  of  the  American  Express  Company;  and 
the  United  States  Express  Company  got  a  receipt  in  the  presence 
of  the  prisoner  for  the  collection  of  $5,720,  and  the  clerk  gave 
the  package  containing  the  money  to  the  prisoner,  wlio  put  it  into 
the  company's  safe.  This  was  about  11  o'clock  on  the  3d  July 
last. 

It  was  the  prisoner's  duty  to  make  the  entry  in  the  receiving 


REOINA  V.  HENNKSSY. 


109 


Ijook  of  all  moneys  received  in  paekagea  received  for  trausniis- 

slon. 

The  jiacka^e  f»»r  8T00  sliotild  have  been  entered,  Imt  there  waa 
110  entry  of  it,  and  the  ^."ijiio  whuiihl  also  have  appeared  in  the 
luMtk,  l»ut  was  n«»t  entered. 

On  the  same  day  the  priHoner  left  Winoi\a  on  a  titock  train  at 
5  1*.  Mm  'i"d  went  thr<»ni;]i  to  Tonmto,  where  he  arrived  on  the 
morning  of  the  ()th,  and  where  he  dispoi<ed  of  American  currency 
to  the  extent  of  some  $5,000  or  $(i,O0O,  and  went  on  to  Montreal, 
•where  he  wad  arrested. 

The  jury  convicted,  and  were  recpiested  t(»  find,  under  a  chargo 
not  complained  of,  whctiier  the  pristnier  was  guilty  of  larceny  or 
cnibez>:lement,  and  found  him  guilty  of  larceny. 

It  was  objected  that  the  evidence  disclosed,  if  any  oflense, 
that  (»f  embezzlement,  and  not  of  larceny,  in  the  foreign  country, 
and  that  the  prisoner  could  not  be  convicted  on  this  indictment, 
which  chargetl  him  with  bringing  into  Canada  property  stolen 
in  such  foreign  country. 

The  learned  judge  sentenced  the  i)risoner  to  three  year's  im- 
prisonment in  the  provincial  iienitentiary,  but  at  the  rcfpiest  of 
the  prisoner's  counsel,  reserved  the  question  for  the  considera- 
tion of  the  court  of  (pieen's  bench.  If  the  court  shonld  be  of 
opinion  that  the  facts  ])roved  did  not  amount  to  larceny,  and  that 
the  prisoner  could  not,  under  the  indictment  and  the  evidence, 
be  legally  convicted  of  bringing  goods  into  Canada  as  stolen,  tho 
prisoner  was  to  be  discharged,  otherwise  the  sentence  was  to  be 
carried  out. 

The  case  was  argued  in  jSEichaelmas  term,  25tli  of  November, 
1S74,  Hun'lson,  Q.  C,  for  the  prisoner.  The  conviction  cannot 
be  supported.  The  (piestion  is,  AVHiat  was  the  design  in  tho 
original  ta  cing?  y^'A?>  i\\cvo  'm\  anltiiusfarand'i?  "We  say  that 
none  has  been  shown.  The  disposal  of  the  property  in  Canada 
cannot  affect  the  question.  No  stealing  has  been  proved  against 
the  prisoner,  but  only  an  embezzlement,  and  the  conviction  is, 
therefore,  bad.  The  prisoner  was  indicted  nnder  32-33  Vic, 
cii.  2 J,  sec.  112,  1).,  for  larceny  of  property  taken  from  Michi- 
gan, in  the  United  States.  The  People  v.  WUruinis,  9  Am.  K., 
119;  24  Mich.,  1G6,  is  dii*ectly  in  point;  and  lieyiaa  v.  Thorpe, 
1  Dears.  &  B.,  562,  and  Eegina  v.  Eoherts,  3  Cox  C.  C,  74,  may 


V" 

ISHI 

wmii 

V 

l>T'  I 

^!f 

1: } 

^1 

400 


AMERICAN  ClilMINAL  REPORTS. 


«.    J 

0 

1 

i 

f '  E 

1 

', 

1 

1 

t 

.*• 

■i 

;j 

■ 

also  be  cited  to  support  our  contention.    See  also  Conmomvoalth 
V.  Sui)j)&o)i,  9  Mete,  138,  143. 

/r.  Mael'ensie,  Q.  C,  contra:  The  case  of  Eegina  v.  WnijJd, 
1  Dears.  &  B.,  431,  is  exactly  this  case  and  supports  tlie  proriccu- 
tion.  The  evidence  plainly  proves  tliat  the  money  found  in  tlie 
prisoner's  possession  was  that  whicli  had  been  stolen.  The  fact 
is  admitted  by  the  prisoner.  The  sole  question  is,  Should  tlie 
conviction  bo  foi-  larcen}-  or  eml)ezzlement ?  We  insist  on  the 
third  count, «'.  c,  for  stealing  in  Canada,  lie  referred  to  licgina 
V.  Watts,  2  Den.  C.  C,  14;  32-33  A"ic.,  ch.  21,  sec.  4;  Ko^ev. 
Crim.  Ev.  (8th  ed.),  042,  and  cases  there  collated. 

December  22,  1874,  IIichakds,  C.  J.  AYe  have  looked  at  all 
the  cases  referred  to  by  Mr.  Harrison  in  his  argument,  and  to 
some  others,  in  which  very  able  judgments  were  given  by  judges 
in  the  state  courts  of  the  United  States. 

It  appears  that  in  most  of  the  New  England  states,  whicli 
■were  British  colonies  before  the  treaty  of  1783,  tlie  ])ractice 
which  prevailed  before  the  recognition  of  the  independence  of 
the  United  States,  of  indicting  oilenders  who  had  stolen  prop- 
crty  in  one  province  and  brought  it  into  another,  has  been  con- 
tinued since  the  adoption  of  the  constitution  of  tlie  United 
States.  But  some  of  these  states  decline  to  act  on  the  principle 
that  the  bringing  of  stolen  projierty  from  another  country  by  the 
thief  into  their  state  constitutes  a  new  taking,  so  as  to  make  the 
larceny  an  indictable  oft'ense  there. 

The  general  doctrine  in  our  courts  is,  that  in  crimiiial  matters 
no  man  is,  in  the  absence  of  express  law,  ])unishable  in  one 
country  for  acts  done  by  him  in  another,  and  the  cases  cital  1)y 
Mr.  Harrison  show  that  this,  in  England,  not  only  applies  to  a 
larceny  committed  in  France,  when  the  thief  brought  the  prop- 
erty into  England,  but  also  to  larceny  committed  in  the  Island 
of  Jersey,  when  the  stolen  property  was  brought  into  an  Englibh 
county. 

We  suppose  the  definition  of  larceny  by  Guosk,  J.,  in  Ilaiiu 
moil's  Case,  2  Leach,  1089,  is  sufficiently  certain,  viz.:  "The 
felonious  taking  of  the  property  of  another  without  his  consent 
and  against  his  w-ill,  with  the  intent  to  convert  it  to  the  nsu  of 
the  taker." 


REGINA  V.  HENNESSY, 


407 


it      ' 


'  lO'iahh 


The  doctrine  was  established  long  ago  that  larceny,  like  every 
other  oft'ense,  must  regularly  be  tried  in  the  same  county  or 
jurisdiction  in  which  it  was  committed;  but  the  offense  was  con- 
sidered as  committed  in  every  county  or  jurisdiction  into  which 
the  thief  carried  the  goods,  for  the  legal  possession  of  them  still 
remained  in  the  true  owner,  and  every  moment's  continuance  of 
the  trespass  and  felony  amounts  to  a  new  caption  and  asporta- 
tion. To  this,  however,  there  were  some  exceptions.  If  the 
original  taking  be  such  whereof  the  common  law  cannot  take 
cognizance,  as  if  the  goods  be  stolen  at  sea,  the  thief  cannot  be 
indicted  for  the  larceny  in  any  county  into  which  he  may  carry 
them.     3  Inst.,  113;  1  Hawk.  P.  C,  151,  sec.  52. 

A  simihir  exception  prevailed  formerly  when  the  original 
taking  was  in  Scotland  or  Irelaiul.  And  it  appears  to  have  been 
liolden  that  a  thief  who  had  stolen  goods  in  Scotland  could  not 
be  indicted  in  the  county  of  Cumberland,  where  he  was  taken 
with  tlui  goods.     Jiex  v.  Anderson,  2  East,  P.  C,  772. 

The  statute  of  the  Imperial  Parliament,  7  and  8  Geo.  IV.,  ch. 
20,  in  etlect  removed  the  exception  as  to  larcenies  committed  in 
the  United  Kingdom. 

But  this  did  not  apply  to  the  case  of  goods  stolen  on  the  island 
of  Jersey,  when  the  thief  had  them  in  his  possession  in  the 
county  of  Dorset,  in  which  he  was  indicted  and  convicted,  be- 
cause the  original  taking  was  such  whereof  the  common  law  could 
not  take  notice,  and  the  island  of  Jersey  not  being  considered 
a  part  of  the  United  Kingdom,  the  case  was  not  within  tlie  stat- 
ute, 7  and  S  Geo.  IV.,  ch.  25),  sec.  7C,  and  so  the  conviction 
was  held  bad.  Hex  v.  Vrowes,  1  Moo.  C  C.  349.  So  also  as 
to  the  island  of  Guernsey,  liegina  v.  Dehndel  et  al.,  11  Cox 
C.  C,  207. 

Felonies  and  misdemeanors  committed  within  the  jurisdiction 
of  the  admiralty  arc  to  be  tried  in  those  courts,  under  the  pro- 
visions of  several  different  statutes.  7  and  8  Geo.  IV.,  ch.  29,  sec. 
76,  Imp.  Par.,  enacted, "  That  if  any  person,  having  stolen  or  other- 
wise feloniously  taken  any  chattel  ....  or  other  property  whatsoev- 
er in  any  one  part  of  the  United  Kingdom  shall  afterwards  have 
the  same  property  in  his  possession  in  any  other  part  of  the 
United  Kingdom,  he  may  bo  dealt  with,  indicted,  tried  and  pun- 
ished for  larceny  or  theft  in  that  part  of  the  United  Kingdom 


108 


AMERICAN  CRIMINAL  REPORTS. 


where  he  shall  so  have  such  property,  in  the  same  manner  as  if 
he  liad  actually  stolen  or  taken  it  in  that  part." 

The  section  goes  on  to  make  similar  provision  as  to  receivers 
of  stolen  goods. 

The  Dominion  Statute,  32-33  Yic,  ch.  21,  sec.  121,  makes 
provisions  to  the  same  effect  as  those  contained  in  the  Imperial 
Stixtute,  24  and  25  id.,  ch.  0(1,  sec.  114-;  and  as  to  similar  offenses 
committed  in  any  part  of  Canada,  they  may  be  tried  in  any  oth- 
er part  of  the  dominion,  where  the  thief  has  the  stolen  property 
in  his  possession,  in  the  same  manner  as  if  the  theft  had  been 
committed  there. 

Sectioii  112  of  the  same  act  provides,  "If  any  person  brings 
into  Canada,  or  lias  in  his  possession  therein  any  property  stolen 
....  in  any  other  country,  in  such  numner  that  the  stealing 
....  would,  by  the  laws  of  Canada  be  a  felony,  ....  then  the 
bringing  of  such  property  into  Canada  ....  shall  be  an  offense 
of  the  same  nature,  and  punishable  in  like  manner  as  if  the 
stealing  ....  had  taken  place  in  Canada,  and  such  person  may 
be  tried  and  convicted  in  any  district,  county  or  ])lace  in  Canada 
into,  or  in  which  ho  brings  such  property,  or  has  it  in  i)osses- 
sion." 

I  ajn  not  aware  of  any  English  statute  which  contains  a  simi- 
Lir  ])rovision.  It  is  very  like  the  law  existing  in  the  state  of 
Michigan,  referred  to  in  the  case  of  People  v.  Wlllia/iit),  24 
MicJ,!.,  15(1;  I)  Am.  R.,  110,  cited  by  Jlr.  Ilnrritton. 

Mr.  Harrison,  in  his  argument,  seemed  to  be  under  the  im- 
pression that  the  facts  j»roven  showed  a  taking  by  a  servant 
when  he  was  indicted  for  end)ezzlement,  and  that  the  conviction 
for  larceny  was  bad  because  the  evidence  in  fact  only  showed  an 
embezzlement. 

The  facts,  however,  stated  in  the  case,  as  submitted  to  us,  seem 
to  liavc  been  that  certain  moneys  were  received  by  the  prisoner, 
an  agent  of  the  American  Express  Company  at  Winona,  in  the 
state  of  Illinois;  the  money  having  been  handed  to  a  clerk  of 
the  prisoner's,  in  his  presence,  in  the  ofKce  of  the  express  com- 
pany; a  receii)t  was  given  for  it,  and  the  clerk  gave  the  package 
containing  the  money  to  the  prisoner,  who  put  it  into  the  com- 
pany's safe  about  11  o'clock  on  3d  of  July.  The  prisoner's  duty 
was  to  make  an  entry  in  the  receiving  book  of  all  moneys  re- 


3m  •^r^' 


REGINA  V.  HENNESSY. 


409 


ceivecl  in  packages  for  transmission,  but  there  was  no  entry  of  it 
in  the  book.  On  the  same  day  the  prisoner  left  Winona  on  a 
stock  train  at  twenty  minutes  past  five  o'clock  in  the  afternoon, 
ami  went  through  to  Toronto,  where  he  arrived  on  the  morning 
of  the  Cth,  and  disposed  of  American  currency  to  the  extent  of 
some  $5,000  or  $(1,000. 

The  jury  were  requested  to  find  whether  he  was  guilty  of  lar- 
ceny or  embezzlement,  and  they  found  hijii  guilty  of  larceny,  no 
olijection  being  made  to  tlie  charge  of  the  learned  judge,  further 
than  that  the  evidence  disclosed,  if  any  oirense,  that  of  embezzle- 
inent,  and  not  larceny  in  the  foreign  country,  and  that  the  pris- 
oner could  not  be  convicted  on  that  indictment,  which  charged 
liiin  with  bringing  into  Canada  property  stolen  in  such  foreign 
country. 

The  learned  judge  sentenced  the  prisoner  to  three  years  im- 
])riso-unicnt  in  the  provincial  penitentiary,  but  fit  the  request  of 
tlie  prisoner's  counsel  reserved  the  question  for  the  consideration 
of  the  judges  of  this  court;  and  if  the  court  should  be  of  opinion 
that  the  facts  proved  do  not  amount  to  larceny,  and  that  the 
prisoi  jr  could  not,  under  that  indictment  and  the  evidence,  be 
legally  convicted  of  bringing  goods  into  Canada,  as  stolen,  the 
prisoner  is  to  be  discharged,  otherwise  the  sentence  is  to  be  car- 
ried out. 

The  case  of  Iic(jlna  v.  Wright,  1  D.  &  B.,  431,  cited  by  2Ir. 
McKinzle,  shows  that  the  facts  proven  on  this  trial  amount  to 
larceny.  There  the  prisoner  was  a  wine  merchant,  but  he  was 
also  the  local  aarent  of  a  bank,  and  received  £150  a  vear  as  a  sal- 
ary,  and  was  to  provide  a  place  for  ciirrying  on  the  business. 
The  office  was  attached  to  his  own  house,  in  which  he  carried  on 
his  own  business  of  a  wine  merchant. 

The  office  was  fitted  up  at  the  expense  of  the  baidc,  and  there 
was  in  it  an  iron  safe,  provided  by,  and  the  property  of,  the 
bank,  into  which  it  was  the  prisoner's  duty  to  put  any  money 
received  during  the  day,  and  which  had  not  been  required  for 
the  purposes  of  the  bank.  lie  sent  in  statements  regularly  to 
the  bank,  showing  money  received,  on  hand  and  paid  out,  and 
specified  the  notes,  cash  or  securities,  and  it  was  his  duty  to  pay 
over  weekly  balances  he  did  not  want  for  his  purposes.  Audits 
were  made  fron>  time  to  time,  and  the  amount  of  cash  on  hand 
examined. 


i 


V 


410 


AMERICAN  CRIMINAL  RErORTS. 


iili 


On  tlic  20tli  of  September,  1S55,  Ins  accounts  were  inspected, 
and  found  correct.  From  that  time  to  tlic  7tli  of  Sej)tenil)er, 
1857,  he  made  up  his  statements  regularly,  and  everything  ap- 
peared  correct,  hut  no  audit  took  place  until  the  12th  of  of  Sep. 
temher,  18.57,  when  an  appointment  was  made  to  examine  his 
cash,  when  prisoner  said  he  was  about  £3,000  short,  and  handed 
over  all  he  had  left,  amounting  to  £775,  IOa'.  lie  made  out  an 
account  showing  a  deficiency  of  £3,021,  dft.,dd.  AVhile  before 
the  nuigistrate  he  admitted  having  taken  this  money. 

The  learned  judge  advised  the  jury  to  find  the  ])rls(»ncr  guilty 
of  larceny  if  tliey  were  satisfied  that  any  part  of  the  sum  misap- 
propriated had  at  any  time  within  the  two  years  been  taken  front 
the  money  sent  by  the  branch  bank  to  the  prisoner,  or  from 
money  which,  liavlng  been  received  from  customers,  had,  before 
such  taking,  been  ])laced  in  the  safe,  and  included  in  the  weekly 
accounts  furnished  by  the  prisoner. 

The  jury  fouiul  the  prisoner  guilty  of  larceny  as  a  clerk,  in 
having  stolen  some  money  received  from  customers,  which, 
before  such  stealing,  had  been  ])laced  in  the  safe,  and  made  the 
subject  of  a  weekly  account.  They  did  not  find  the  ])risoncr 
stole  any  of  the  money  which  had  been  sent  to  him  from  the 
branch  bank. 

Lord  Cami'ukll,  in  giving  judgment,  said,  at  p.  -Ill :  "  "When 
the  money  was  jdaced  in  that  safe,  which  was  furnished  by  the 
employer,  and  of  which  the  em})loyer  had  a  duplicate  key,  the 
exclusive  possession  of  the  prisoner  was  determined.  The 
money  being  so  deposited  in  the  safe,  and  afterwards  taken  out 
of  the  sf.fe  by  the  prisoner  animo  fuvimdl,  he  was  guilty  of  lar- 
ceny. The  safe  in  this  case  very  much  resembles  a  till  in  a  shop. 
The  shopman  has  access  to  the  till,  and  has  a  right  to  take  money 
out  of  it  for  lawful  purposes;  but  if  he  takes  it  out  annuo  fu- 
raiull,  he  is  a  thief." 

COLKUIDOK,    J.,    MauTI.V,    ]*.,    CltOWDKU,    J>.    and    AV^ATSOX,   Jj., 

each  gave  judgments  concurring  in  the  same  view. 

It  appears  to  us  the  ]>rincii)le  in  that  case  clearly  applies  to 
this.  The  prisoner  was  shown,  by  the  evidence,  to  have  been 
the  agent  of  the  express  com])any,  who  were  the  bailees  of  the 
money,  aiul  he  ])ut  it  into  their  safe,  and  there  was  evidence  to 
go  to  the  jury  to  show  that  afterwards,  he  stole  it  out  of  the  safe, 
and  brought  it  to  this  city. 


spected, 

teniber, 

lug  ap- 

of  8op. 

lino  Ill's 

handed 

out  an 

before 


.X,  J}., 


REGINA  V.  HENNESSY. 


411 


lie  therefore  brought  into  Canada  property  stolen  in  another 
country,  in  such  a  manner  that  the  stealing  would,  by  the  laws 
of  Canada,  bo  a  felony,  and  the  statute  declares  that  to  be  an  of- 
fense of  the  same  nature  as  if  the  stealing  had  taken  place  in 
Canada. 

The  iirst  count  of  the  indictment  charges  him  with  having 
stolen  the  property  in  a  foreign  country,  and  with  subsequently 
bringing  it  into  Canada,  and  the  jury  have  found  him  guilty  of 
this  ottense. 

As  we  understand  the  objection  which  is  urged  by  the  pris- 
oner, it  is  simply  that  the  facts  show  embezzlement,  and  not  lar- 
ceny. The  case  cited  shows  it  is  larceny,  and  that  seems  to  us  to 
bo  the  end  of  it. 

It  is  not  Mi'ged,  in  terms,  at  all  events,  that  affirmative  evi- 
dence must  be  given  to  show  that  stealing  by  a  clerk  or  agent 
from  his  employer  of  nxoney  which  has  come  into  the  possession 
of  the  latter,  is,  by  the  laws  of  the  state  of  Illinois,  larceny. 

"W'^o  do  not  feel  inclined  to  suggest  such  a  point  for  the  bene- 
fit of  any  person  who  may  be  shown  to  have  done  this  thing, 
whatever  wc  may  call  it. 

"We  shoidd  say,  if  it  were  shown  that  in  the  city  of  Chicago, 
while  a  man  was  riding  in  a  street  railway  car,  one  of  the  pas- 
sengers sitting  beside  him  adroitly  took  his  watch  out  of  his 
pocket,  and  left  the  car,  taking  passage  on  the  next  train  for  To- 
ronto, and  on  reaching  this  city,  sold  the  watch  here,  that  he  had 
brought  stolen  property  into  Canada,  without  showing  affirm- 
atively there  was  any  law  in  Illinois  saying  that  such  an  act  was 
larcenv. 

If  a  servant  were  to  take  his  master's  money  out  of  a  till  in 
his  shop  ill  Chicago  ammo  fanimll,  and  brought  it  here,  we 
should  say  that  in  bringing  that  money  he  was  bringing  stolen 
money  into  Canada;  and  the  same  principle,  we  think,  extends 
to  the  prisoner  in  this  case. 

In  discussing  the  question  of  the  examination  of  a  witness  in 
a  foreign  country,  under  a  commission,  as  in  Lxunlcy  v.  Gill, 
3  E.  &  I>.,  114,  Lord  Cami'bkll  said,  at  p.  124:  "The  statute 
will  reach  a  British  subject  committing  perjury  in  a  foreign 
country.  "We  certainly  do  legislate  so  as  to  make  some  acts  done 
in  foreign  countries  penal  here,  as  in  the  case  of  murder  and 


412 


AMERICAN  CRIMINAL  REPORTS. 


slave  trading.    But  then  our  legislation  applies  only  to  British 
subjects." 

Sir  A.  CocKUURX,  then  attorney  general,  in  argument  sai<l: 
"In  all  civilized  countries  there  is  some  punishment  fur  wilful 
faUe  eviclcTice." 

Siiiith  V.  CoUlns,  3  U.  0.,  1,  where, in  an  action  of  slander 
■'iiu  c/  "go  was,  that  plaintiff  had  stolen  a  cow  in  the  United 
jjcate^.  Sir  J.  B.  IIohinson  said,  at  p.  3:  "It  is  true  that  we  do 
not  recognize  the  criminal  law  of  foreign  countries,  and  there- 
fore- •  is  ii;.-ii.xl  that  we  cannot  be  certain  that,  by  the  laws  of 
the  United  iStiite  ,  a  man  who  has  stolen  a  cow  ....  would  bo 
liable  to  any  corporal  punishment.  The  same  might  be  f^aid  of 
words  imputing  murder,  forgery,  or  arson.  But  surely  we  may 
infer  that  in  any  civilized  community  which  has  laws,  and  prop- 
erty to  i>rotect,  to  steal  must  be  an  offense  of  a  very  grave 
character.  IIow  they  may  punish  it  we  may  not  precisely  know. 
But  I  think  the  good  sense  of  the  rule,  as  now  maintained,  is, 
that  the  charging  a  man  with  conrnitting  abroad  such  a  crime 
as  would  subject  him  to  the  punishment  of  felony  here,  by  tlie 
common  law,  fixes  with  ecpial  certainty  the  character  of  the  im- 
putation, and  places  the  man  in  fully  as  degraded  a  position  in 
society." 

Our  parliament  has  not  declared  that  larceny  in  the  state  of 
Illinois  is  a  crime  here,  but  that  the  bringing  of  the  property 
stolen  in  another  country  into  this  country,  when  that  })roperty 
■was  stolen  in  such  a  manner  as  would  have  made  it  a  felony  here, 
is  an  ofi'ense  of  the  same  nature  as  if  such  stealing  ha<l  taken 
place  here. 

AV^e  i-ecognize  the  rights  of  the  owners  to  their  property  when 
a  trespasser  brings  it  into  this  country.  The  fact  that  a  tliief 
brings  it  here  does  not  deprive  the  owner  of  his  i)roperty,  and 
■we  will  aid  him  to  recover  the  property  or  its  value.  AVe  see  no 
good  reason  for  sa3'ing  that  when  the  thief  brings  the  stolen 
property  into  this  country,  and  disjioses  of  it  here,  that  our 
legislature  may  not  pass  a  law  to  punish  him  for  so  doing. 

"NVe  do  not  think  the  people  of  the  dominion  of  Canada  should 
be  open  to  the  reproach  of  being  the  receivers  of  stolen  goijds, 
or  that  this  country  should  be  an  asylum  for  thieves,  and  that 
■when  they  actually  bring  their  plunder  here,  and  vaunt  it  before 


'ritisli 


!^;ii(.l : 


WILLIAMS  V.  STATE. 


413 


our  eyes,  we  cannot  say  that  any  rights,  constitutional  or  moral, 
are  violated  in  punishing  them  for  it. 

Conviction  affirmed. 


I 


■HM 


Hi 


Williams  vs.  Statk. 
(5.5  Ga.,  391.) 
Lauckxy:    Consent  of  owner. 

Where  the  evidence  was  that  the  owner  of  propoi-ty,  was  iufonned  by  his 
agent  who  had  chavfre  of  the  property,  that  respondent  wanted  the  agent  to 
join  him,  respondent,  in  steahng  it,  and  thereupon  the  owner  tokl  tlie  agent 
to  let  the  respondent  take  it,  and  in  pursuance  of  this  arrangement,  the  re- 
spondent came  atnightati'l  the  agent  let  him  have  the  property,  and  re- 
spondent started  oif  with  it,  it  was  held  that  there  was  no  larceny. 

Although  the  owner  of  property  nay  leave  it  exposed  for  the  express  purpose  of 
trapping  one  whom  he  expects  to  steal  it;  yet,  if  he,  through  an  agent,  incite 
a  person  to  take  it,  the  taking  is  no  larceny,  for  it  is  by  his  own  consent  and 
procurement. 

Blkcklky,  J.  1.  The  bill  of  indictment  was  found  by  grand 
jurors,  some  of  whom,  after  being  drawn  to  serve  at  tliat  term 
of  the  court,  had  been  dropped  from  the  general  list  of  persons 
qualified  and  liable  to  serve  as  jurors  on  a  revision  of  the  list  by 
the  pro])er  officers.  Tliis  was  made  a  ground  of  motion  to  quash 
tlie  bill.  It  was  promptly  overruled  for  the  reason  tliat  the  re- 
vised list  was  made  for  the  purpose  of  designating  the  names 
from  wliich  future  juries  were  to  be  drawn,  and  had  no  relation 
whatever  to  the  juries  whicli  had  already  been  drawn  to  do  duty 
at  the  next  term  of  the  court  —  the  term  at  whicli  the  indict- 
ment was  found.  Any  other  construction  would  subject  both 
the  grand  jury  and  the  petit  juries  to  a  process  of  disintegration 
every  time  a  revision  of  the  general  list  takes  place. 

2.  Another  ground  of  motion  to  quash  was,  that  the  indict- 
ment, upon  its  face,  by  an  entry  at  the  close  of  it,  purported  to 
have  been  found  at  October  term,  1871.  This,  also,  was  prop- 
erly overruled.  This  entry  was  not  an  essential  part  of  the 
indictment,  and  giving  that  year,  instead  of  the  year  ISTl,  was 
evidently  a  clerical  error.  The  t.'ue  date  appeared  on  the  minutes 
of  the  court,  and  was  reproduced  on  the  back  of  the  indictment. 

3.  The  trial  proceeded,  and  the  defendant  was  convicted.  He 
was  charged  with  stealing  thirty  pounds  of  seed  cotton  of  the 


4U 


AMERICAN  CRIMINAL  REPORTS. 


value  of  ^1,00.  It  appeared  in  evidence  that  the  cotton  was  on 
the  owner's  plantiition,  in  tlie  possession  of  his  tenant  or  aj^ent. 
The  agent,  during  the  day,  reported  to  tlie  owner  tlmt  the  defend- 
ant wanted  to  buy  or  get  some  cotton,  and  the  owner  replied, 
"Let  him  have  it,  and  I  will  be  there  at  the  getting."  That 
night,  the  owner,  with  a  party  of  friends  armed  with  guns,  con- 
ceaU;d  themselves  near  the  cotton  lu)use.  As  testified  by  the 
owner,  he  was  told,  at  the  conversation  in  the  day  by  his  agent, 
that  the  defendant  would  l)e  there  that  night  to  get  the  cotton. 
lie  also  testified  that,  on  taking  his  position  at  night,  he  called 
out  his  agent  and  asked  where  the  defendant  was.  IJeing  told 
that  he  Mas  in  the  woods  about  a  quarter  of  a  mile  oil',  he  directed 
the  agent  to  go  and  tell  him  to  come  and  get  the  cotton.  The 
agent  went,  and  after  a  short  absence,  returned  in  company  with 
defendant.  Leaving  the  defendant  at  the  cotton  house,  within  a 
few  ste])s  of  where  the  owner  and  Ids  party  lay  concealed,  the 
agent  went  to  his  dwelling  house,  brought  out  a  basket  of  cotton, 
delivered  it  to  the  defendant,  who  moved  off  with  it  and  just 
then  the  owner  cried  "halt,"  and  his  party  discharged  theirguns 
in  the  air;  the  defenda.it  dropped  the  basket,  ran  (»it'  in  the  dark- 
ness, and  made  his  escuj)e.  The  court  charged  the  jury,  in  sub- 
stance, thiit  if  the  defendant  and  his  associate  in  the  transaction 
(the  owner's  agent)  united  in  a  common  intent  to  steal  the  cot- 
ton, combining  and  confederating  for  that  purj)()se,  in  executing 
the  common  intent,  and  one  of  them  did  the  actual  taking  and 
carrying,  they  were  both  guilty.  Also,  that  if  the  agent  had  no 
intent  to  steal,  but  the  defendant  believed  he  had,  and  so  com- 
bined and  confederated  with  him  to  steal,  and  the  agent  handed 
him  the  cotton,  and  he  took  it  and  removed  it  any  distance  what- 
ever, he  was  guilty.  There  is  no  evidence  in  the  record  ufton 
•which  to  charge  the  defendant  with  any  taking  and  carrying 
away  done  by  his  supposed  accomplice.  The  evidence  is  clear 
that  that  person  was  in  mental  and  moral  concert  with  the  owner, 
not  with  the  accused.  It  is  incredible  that  he  was  engaged  in 
stealing  during  this  trauiiaction.  There  was  no  guilty  taking  or 
cai'rying  done  by  him,  and  it  was  error  for  the  court  tt>  make  any 
charge  based  on  that  hypothesis.  The  defend. nt,  is  resj)unsil)le 
alone  for  such  taking  and  carrying  away  as  wei-e  done  by  him- 
self. According  to  thu  evidence,  the  acts  of  the  counterfeit 
accomplice  proceeded  from  the  joint  will  of  himself  and  the 


^^ 


IBt'T 


ajj^eiit. 


WILLIAMS  V.  STATE. 


415 


accused.  lie,  witli  the  owner,  was  running  on  the  line  of  detec- 
tion and  arrest.  Tlie  accused  had  a  supposed  ally,  but  not  a  real 
one;  he  was  running  by  liiniself,  on  the  line  of  guilt  and  impu- 
nity. His  pretended  accomplice,  being  a  person  of  sound  mem- 
ory and  discretion,  could  do  no  act  which  would  render  the 
defendant  guilty,  for  the  former  was  making  no  effort  to  become 
guilty  himself.     lie  was,  in  fact,  only  a  detective,  not  a  thief. 

•i.  The  second  proposition  of  the  charge  is  equally  erroneous 
when  applied  to  the  facts  of  this  case.  The  evidence  is  clear  and 
uncontradicted,  that  the  cotton  M'as  delivered  by  the  owner's 
agent.  As  testified  by  the  latter,  the  owner  said  during  the  day, 
"Let  him  have  it,  and  I  will  be  there  at  the  getting."  As  tes- 
tified by  the  owner  himself,  he  said,  at  night,  "Go  and  tell  him 
to  come  and  get  the  cotton."  Kithor  of  these  expressions  might, 
without  much  strain,  be  construed  into  a  direction  on  the  part  of 
the  owner  to  deliver  the  cotton,  and  it  was  in  fact  delivered. 
There  was  no  trespass  committed  in  the  taking.  There  was  no 
taking  without  the  owner's  consent.  True,  the  consent  was  given 
for  a  purpose  quite  aside  from  any  design  to  part  with  the  prop- 
erty, but,  if  given  at  all,  and  the  intended  larceny  was  cut  off  as 
soon  as  the  owner  could,  after  delivery,  cry  halt,  and  fire  off  the 
guns,  what  taking  was  there  which  could,  with  any  truth,  be  said 
to  be  without  his  consent?  If  the  property  was  delivered  by  the 
owner's  direction,  and  with  his  consent,  it  can  make  no  differ- 
ence, legally,  although  it  does  morally,  that  the  accused  did  not 
know  of  such  direction  and  consent.  Suppose  tue  owner,  instead 
of  acting  by  his  agent,  liad  acted  in  person,  and  delivered  the 
cotton  from  his  own  hands,  the  defendant  not  knowing  him  to 
be  the  owner,  but  believing  him  to  be  another  thief  and  a  con- 
federate with  himself  in  the  supposed  larceny,  would  not  an 
essential  element  of  legal  larceny  be  wanting? 

5.  I'ut  were  it  even  granted  that  the  agent  made  delivery  on 
his  own  motion,  without  the  owner's  consent,  there  was  too 
much  active  participati«»n  by  these  two  persons  in  this  transac- 
tion for  it  to  amount  to  larceny  on  the  part  of  the  accused.  It 
seems  to  be  settled  law  that  traps  may  be  set  to  catch  the  guilty, 
and  the  business  of  trapping  has,  with  the  sanction  of  courts, 
been  carried  pretty  far.  Opportunity  to  commit  crime  may,  by 
design,  be  rendered  the  most  complete,  and  if  the  accused  em- 
brace it  he  will  still  be  criminal.    Property  may  be  left  exposed 


m 


n 


,''< 


f 


41G 


AMERICAN  CRIMINAL  RETORTS. 


\ 


?'">,! 


h' 


It 

i;  jji  ,| 
I  i '  I 

Tfr' 


for  the  express  purpose  that  a  suspected  thief  may  commit  him- 
Belf  l>y  stealiuiy  it.  The  owner  is  not  bojiud  to  take  any  nieas- 
wres  for  sccurit}'.  lie  may  repose  upon  tlie  law  alone,  and  the 
law  will  not  inquire  into  his  motive  for  trusting  it.  ]>ut  can 
the  owner  directly,  through  his  agent,  solicit  the  suspected  party 
to  come  forward  and  commit  the  crimiiuil  act,  and  then  coinpliiiu 
of  it  as  a  crime,  especially  where  the  agent,  to  whom  he  has  en- 
trusted the  conduct  of  the  transaction,  puts  his  own  liand  into 
the  corpus  delicti,  and  assists  the  accused  to  perform  one  or 
more  of  the  acts  necessary  to  constitute  the  olFense?  Should  Uiit 
the  owner  and  his  agent,  after  malcing  everything  ready  and 
easy,  wait  passively  and  let  the  W(»uld-l)e  criminal  j)erpetrate  the 
offense  for  himself  in  each  and  every  essential  part  of  it?  It 
■would  seem  to  us  that  this  is  the  safer  law,  as  well  as  the  sounder 
morality,  and  we  think  if  accords  with  the  authorities;  2  Leach, 
913;  2  East  P.  C,  ch.  10,  sec.  101,  p.  00(5;  1  Car.  &  Mar.,  218; 
Meigs,  SO;  11  Humph.,  320;  2  Ikily,  5G9. 

It  is  difficult  to  see  how  a  man  may  solicit  another  to  commit 
a  crime  upon  his  property,  and  when  the  act  to  which  he  was 
invited  has  been  done,  be  heard  to  say  that  he  did  not  consent 
to  it.  In  tlw  present  case,  but  for  the  owner's  incitetncnt, 
through  his  agent,  the  accused  may  have  repented  of  the  con- 
templated wickedness  before  it  had  develoj)ed  into  act.  It  nisiy 
have  stopped  at  sin,  without  putting  on  the  body  of  crime.  To 
stimulate  unlawful  intentions,  with  the  motive  of  bringing  theiu 
to  punishable  maturity,  is  a  dangerous  practice.  Much  better  is 
it  to  wait  and  see  if  they  will  not  expire.  Humanity  is  weak; 
even  strong  men  are  sometimes  unprepared  to  cope  with  tempta- 
tion and  resist  encouragement  to  evil. 

Let  the  judgment  be  reversed. 


Commonwealth  vs.  Titus. 

(UG  Mass.,  42.) 

Larceny  :    By  finder  of  lost  goods. 


If  the  finder  of  lost  goods,  at  the  time  of  taking  them  into  his  possession, 
knows,  or  has  the  reasonable  means  of  knowing  or  ascertaining,  wlio  tJio 
owner  is,  but  intends  at  the  time  to  appropiiate  thom  to  his  own  use,  and 
deprive  the  owner  of  them,  he  may  be  found  guilty  of  larceny. 


Ti 


iHf 


COMMONWEALTH  i-.  TITUS. 


417 


■  )   ;» 


If  the  fimlcr  of  lost  gooilH  has  no  felonious  iiik'iit  at  the  time  of  talcing  tiieiu 
into  his  possi'ssion,  a  subsequent  conversion  of  tiieni  to  his  own  use  \vill  not 
constitute  larceny. 

Tjiis  was  an  indictment  for  larceny.  It  appeared  by  the  bill 
of  exceptions  that  the  prosecutor  lost  the  goods  while  passint^ 
}ilon<j  a  ])ub]ic  highway  where  they  were  shortly  afterwards 
found  by  the  defendant.  The  evidence  tended  to  show  that  the 
defendant  intended  to  convert  the  property  to  his  own  use  when 
he  lirst  found  it,  but  whether  there  was  any  evidence  that  he 
then  knew  who  the  owner  was,  or  had  any  means  of  ascertaining 
that  fact  does  not  appear  in  the  report  of  the  case. 

Gkay,  C.  J.  The  rulings  and  instructions  at  the  trial  were 
quite  as  favurable  to  the  defendant  as  the  great  weight,  if  not 
tlic  unanimous  concurrence,  of  the  cases  cited  on  either  side  at 
the  argument  would  warrant. 

The  finder  of  lost  goods  may  lawfully  take  them  into  his  pos- 
session, and  if  he  does  so  without  any  felonious  intent  at  that 
time,  a  snbsccpient  conversion  of  them  to  his  own  use,  by  what- 
ever  intent  that  conversion  is  accompanied,  will  not  constitute 
larceny.  P>nt  if,  at  the  time  of  first  taking  them  into  his  pos- 
session, he  has  a  felonious  intent  to  appropriate  them  to  his  own 
use,  and  to  deprive  the  owner  of  them,  and  then  knows  or  has 
the  reasonable  means  of  knowing  or  ascertaining,  by  marks  on 
the  goods  or  otherwise,  who  the  owner  is,  he  may  be  found 
guilty  of  larceny. 

It  was  argued  for  the  defendant  that  it  would  not  be  sufficient 
that  he  might  reasonably  have  ascertained  who  the  owner  was; 
that  he  must  at  least  have  known  at  the  time  of  taking  the  goods 
tliat  he  had  reasonalde  means  of  ascertaining  that  fact.  But  the 
instruction  given  did  not  require  the  jury  to  be  satisfied  merely 
that  the  defendant  might  reasonably  have  ascertained  it,  but  that 
at  the  time  of  the  original  taking  he  either  knew,  or  had  reason- 
able means  of  knowing  ov  ascertaining  who  the  o^\^ler  was.  Such 
a  finding  would  clearly  imply  that  he  had  suclx  means  within 
his  own  knowledge,  as  well  as  within  his  own  possession  or  reach 
at  that  time. 

It  was  further  argued  that  evidence  of  acts  of  the  defendant, 
subsequent  to  the  original  finding  and  taking,  was  wrongly  ad- 
mitted, because  such  acts  might  have  been  the  result  of  a  pur- 
VoL.  I.  — 27 


418 


a:mf;uioan  criminal  reports. 


»'( 


rHt   ' 


{  (  ^    ' 


pose  sul)spqncntl_y  fonnctl.  T»ut  the  evidence  of  the  ati1)«(>(|iiont 
actri  ii»!(l  <k'('I;iruti(»ii8  of  the  dt'feiulimt  was  ollbred  iind  iulniitted, 
fvs  tliu  bill  of  oxt't'ptioiiH  distiiiftlj  Htatec,  for  tlie  siiij;It'  i»iiriiiiso 
of  proviiii,^  so  fill-  as  it  tuiided  to  do  wo,  the  intent  witii  wliich 
the  dt'fc'ii(hint  ori^iiiidly  took  the  ])ro])orty  into  Ids  ])osftt'si*iou  ut 
the  time  of  iindiiii^  it.  And  the  hill  of  exceptions  doi's  not  .^^tiito 
whiit  the  acts  and  deeliimtions  admitted  in  evidence  were,  ancl 
consecinentlv  does  not  show  that  any  of  them  had  a  tendeiicv  to 
prove  that  intent,  nor  indeed  that  any  acts  were  proved  except 
sucli  as  accompanied  and  ^ave  si^nilicance  to  distinct  ailnTb  'ons 
of  the  intent  with  which  the  defendant  originally  took  tlu  Is. 

NoTi:.  —  Til  Stiitc  r.  WiKfoii,  0  Conn.,  .')27,  tlio  I'vidonro  t^'ndcd  to  sliow:  Tlmt 
till!  iirisoiuT  found  a  imckct-liook,  lontiiininj,'  iiioni'y,  on  thi!  hi^rliw  ly,  iiml  tliat 
the  niimc  of  the  |irnsi'iiitor  wus  li'^ril/iy  wi-ittcn  in  the  iiookct-liooU  in  two  |ilai'i\-i, 
A  diiiv;.'!'  tliiit  "  if  the  (li'fi'inliint  found  tlic  pockct-ljook  and  Inmk  \)[\U  ha  cliiiuu'd 
Ijy  him,  and  blowing'  or  lismnj,'  tlio  mciins  of  knowing,  tlio  owner,  coiiei'iili'd 
tli(nn  and  converted  tliein  to  liis  own  use,  instead  of  f^ivinj,'  notii  tliercof  to  tho 
ownior,  he  wa.-<  a  tliief,  and  oajrht  to  lie  found  ),'uilly,"  was  lield  correct. 

llie  prisoner  found  a  sum  of  nionpy  on  tlie  hi;,'hway.  wliidi  he  soon  after  con- 
verted to  liis  own  use,  witli  various  circninstances  of  falsehood  and  coiueahnent. 
On  his  trial  for  hirceny,  the  judtro  instructed  tlie  jury  that  "if  tiie  iirisoner,  at 
the  time  of  fijidin^'  tlie  pocket-hook,  and  before- he  riMuoved  the  money,  knew  it 
t«i  be  the  properiy  of  the  jirosecutor;  or  not  knowinj^  it  to  be  the  i)roi>i'i"ty  of  tim 
prosecutor,  if  at  the  time  of  removiiifjf  the  money,  he  did  it  with  the  inti'iit  to 
convert  it  to  his  own  use,  it  was  larceny."  <  »f  this  instruction  the  sniirenie  cdnit 
say:  "It  is  on  the  latt<'r  jianiKTaiih  of  this  instruction  that  the  doubt  of  tin-  couit 
arises.  Of  tlie  correctness  of  the  lirst  jiaii  of  tln'  instruction,  lyi  (luestioii  exists 
in  tli(!  mind  of  the  court.  .•\nd  if  the  same  verdict  Inid  been  found  on  tiiat  alone, 
till'  coiu't  mi^dit  havi'  been  entirely  satisfied  with  it.  On  the  other  bnineh  of  tlie 
instruction,  the  court  is  divided;  on  that  point  no  opuiion  is  expressed.  Xut  as  it 
is  possible  tho  verdict  may  have  been  inflnencod,  in  Komo  doHree,  by  that  instruc- 
tion, the  court  is  unwilliii},'  that  the  defendant  should  sntf'er  on  a  verdict,  when 
the  law  is  at  all  doubtful.  ,\  new  trial  is  therefore  ordered  without  prejudici'," 
Sfdh'  r.  Fn-f/iimi,  2  McMuU.  (S,  C),  .'J02. 

"Toroiistitute  larceny  in  the  finder  of  j^oods  actually  lost,  it  is  not  enou;,'li  that 
the  party  has  f,''enera]  means  by  the  use  of  jiroper  dilijs'ence,  of  discoverini;  tiu; 
tnio  ownier.  lie  must  know  the  owner  at  the  time  of  the  findinfj,  or  the  gooiLs 
must  have  some  mark  about  them  undi'rstood  by  him  or'presiimably  known  by 
Jiim,  by  which  the  ownier  can  be  ascertained.  And  he  must  aiiprojiriate  them  a.fc 
the  time  of  fiiidiiifr  ^\^th  intent  to  take  entire  dominion  over  thi'in."  Hunt  r, 
Ciiwininurfulth,  V.\  (irat.  (Va.),  TH.  In  Stati-  v.  I'rntt,  20  la.,  2fW,  the  evidence 
tended  to  show  that  the  stolen  money  belonfjed  to  one  Dunn;  that  Dunn  had  it 
in  his  pocket-book  in  a  side  pocket,  and  that  it  wa.s  either  tidieii  therefrom,  or 
dropped  out  and  was  jiicked  up,  by  the  defendant.  On  these  facts  it  was  lirhl: 
"  that  if  tho  defendant  picked  it  up,  and  v,'ith  an  unlawful  intent  converted  it  to 


^ 


C0:\IM0N\VEALT1I  v.  TITUS. 


4ia 


hw  owi  nm',  willidiit  tin'  kiiowli'd^o  of  tlic  own t,  it  would  lie  m  much  liirccny  or 
(I  I'fjdiiiiMis  tii.kiii^',  iw  tlu)iiH:li  lie  ii.iil  taken  it  troni  the  jioekct." 

,\uil  so  in  .s7(»/(^  ('.  (!ii,iiniiif/n,  'A'-l  (Jonn.,  2')0,  wlicri'  a  HcrviMit  picked  up  a  itjiii^ 
in  till-  iioUMc  of  her  ini:<)reKS,  knowing  it  to  linve  lieen  iiccidentally  drop|)ed  l>y  tlio 
latter,  and  to  iiejonj^  to  )ier,  aixl  wlien  questioned  a  few  uiiniiteH  aftenviirds,  do- 
llied liavinjf  taken  it,  and  liannjjf  coiiceak'd  it,  within  a  few  weeks  eamcd  it  to  a 
distant  city  and  otlercd  it  for  sale;  it  wiw  Jufil  that  the  d(.'fen<lant  was  ^^uilty  of 
liuveny. 

In  tho  I'e-i/ih'  r.  Amh'rsnn,  14  Jdhns.,  21)1,  tl'(?  di'fi'ndant  was  the  hoim  Ji'fc 
finder  of  a  trunk  which  had  l«>en  lost  from  a  stiiire  coiidi  in  the  hi^'liway;  and  it 
was  held  that  no  sultserpient  act,  in  concealing'  oi  ippropnatin^'  tin'  tnnik  to  \m 
own  use,  would  make  itaca*t('  of  liuwiiy.  'Jlie  decision  piwecded  on  tli"  (,Tound 
tliiittlie  im)perty  wiis  losthy  the  owner,  so  that  it  no  lon^'erreniiiined  either  iictn- 
ally  or  constnictively  in  his  possession,  anil  tliat  it  aftenvards  came  lawfully  into 
the  hands  of  the  defendant  by  finduii^'. 

Wiieii  property  (r.  ;/.,  a  pocket  hook  coutiiiniii^r  li;nik  hills),  with  no  ni:irk  ahout 
it  indicating,'  tho  o\nier^  was  lost,  and  found  in  the  hi^fhwny,  and  there  wiis  no 
evidence  to  show  that  tho  finder,  at  th('  time,  knew  who  the  owner  wn.s;  hchl,  that 
he  could  not  be  convicted  of  larceny,  thou;.'h  he  friuidulently,  ami  with  intent  to 
convert  the  property  to  his  o\sni  nse,  concealed  the  same  inunediately  afterward. 

To  render  tho  tinder  of  lost  pniperty  liablu  aw  for  a  larceny,  ho  must  know  who 
the  o\mcr  is,  at  the  time  he  ac(iiures  iiossession,  or  have  the  means  of  iden'ifjTnt'' 
him  iiisfdiitfi;  \>y  marks  then  about  tho  property  which  the  finder  undi'istand:*. 
It  is  not  cnoui^h  that  ho  has  p'neral  iiif<nin  of  tlisrorprivf/ the  o»r*Jcr  by  honest 
(Uligenco,  etc.    Pcoj,!.' ,:  Co;jilrIf.  1  Hill  (N.  Y.),  !>t. 

It  is  said  in  Hdiiiluu  ".  Stair,  I  S.  \-  M..  M'-),  that  "it  is  a  .-ettleil  principlo 
of  law  that  if  one  loses  floods  and  ajiother  tind  them  and  convert  them  to  his  own 
use,  not  knowing,'  the  owner,  this  is  no  larceny,  Ihit  if  thelattor  Imew  the  own- 
er, or  luid  tho  na'ans  of  knowiu);  liim,  it  would  bo  larceny."  But  in  this  case 
this  lajij,niai.;e  wa.s  a  more  dktiiw,  for  the  conviction  was  reversed  on  the  yround 
tliat  there  was  no  evidence  af,'a,ijist  tho  defendant. 

In  I'diiKdin  r.  Sidle,  22  Cnmi..  lolt,  tho  court-  seems  to  have  fjono  the  whole 
lenixth  of  deeiduiK  that  if  the  tinder  of  lost  floods,  at  tho  time  of  tho  finding,  in- 
tends to  convert  them  to  his  own  use,  and  actually  does  so,  ho  is  ynihy  of  larce- 
ny, without  ro),'ard  to  theiiuostion  whether  at  tho  time  of  finding  ho  know  or  had 
the  means  of  discovomifj:  the  owner.  Such  knowledjjo,  on  his  piu't,  soi'ms  to  be  ro- 
giu'dod  as  a  mere  circumstiuno  beariny  on  the  question  of  the  oriH:inal  felonious 
intent.  Hut  ui  Wnijlit  v.  State,  '>  Yer;,'.,  I.'i4,  it  was  Jielil  that  there  could  be  no 
larci'uy  of  lost  go^ds  under  any  circumstances,  lliat  to  constitute  a  larceny,  thoro 
must  be  a  ti'ospass  ui  tho  taking.  'J'liat  ciuinot  b(.'  if  tho  goods  wore  lost,  because 
they  would  not  be  in  the  owner's  jKissession,  and  no  trosjiass  could  be  committed 
hi  taking  tJiem.  This  case  follows  tho  case  of  I'urtcr  v.  State,  1  Mart.  A:  Yerg., 
220. 

In  Sidle  e.  Cmiiraif,  \>^  Mo.,  :V21.  the  evidence  showed  that  tne  dofendinits  found 
a  safe  in  tJie  Mississippi  river,  anil  Ciirried  it  openly  in  day  light  on  a  dray,  to  a 
liouse  in  St.  Louis,  where  one  of  th(>m  lived;  there  they  forced  the  safe  open  and 
took  out  the  money,  and  were  djviihng  it  when  one  of  tho  owners,  who  Imd  traced 
them,  came  in  iuid  told  them  not  to  intort'ere  with  it.  for  it  belonged  to  tho  owners 
of  the  steamer  Glencoe.    The  defendants  said  they  had  found  it,  and  claimed  they 


^IM' 


420 


AMERICAN  CKIMIXAL  REPORTS. 


,«' 


k 


it; 


were  entitled  to  it.  The  owner  went  after  the  police,  and  on  his  return  found 
that  tlie  men  had  fled  with  the  money.  They  were  followed  and  caught  in  a  com 
field  ui  which  they  had  concealed  themselves,  with  the  money  on  their  persons. 
It  was  held  that  on  these  facts,  tiie  defendants  were  entitled  to  a  positive  chiir!,'e 
that  tiiey  were  not  guilty  of  larceny.    See  A^o  State  v.  Jenhiiis,  2  'I'jl.  (Vt.),  ;]77. 

Larceny  cannot  be  committed  of  goods  and  chattels  found  in  the  higlnvuy, 
wheiv  tiiere  are  no  marks  by  which  the  owner  can  be  ascertiiined.  One  inirrcdi- 
ent  of  liu-ceny  is  wanting  in  sucli  case,  to  wit:  A  felonious  taking.  Ti/hr  v.  l\o- 
pie,  Ureese  (1  111.),  227. 

Hie  foregoLiig  are  all  of  the  Ameiican  cases  of  any  imiwrtance  wliich  don'  witli 
the  question  of  what  constitutes  larceny  in  the  finder  of  lost  goods.  On  tJiese  ca.>L'.s 
we  think  the  weight  of  American  authority  is  that  there  can  be  no  hu-ceny  unless 
at  the  tune  of  finduig  the  goods,  the  flnder  knows,  or  fi-om  marks  on  the  goods,  ov 
the  surrouniling  circumstances,  can  then  ascertain  the  owner 


i'  I 


Martinez  vs.  State. 

(41  Tex.,  12G.) 

L.uiCEXY :    ProjH'tii/  outslile  of  store. 

Stealing  property  hanging  at  and  outside  of  a  store  door  is  but  simple  liU'coiiy, 
and  is  not  hu-ceny  from  a  house. 

ItiiKVKS,  A.  J.  The  only  question  in  tins  case  is  presented  iu 
the  brief  for  the  stivte:  "  Is  an  imlictnient  for  theft  frtiiii  a 
house,  sustained  by  prouf  that  tlie  stolen  property  Avas  tal:eii 
■while  hanging  at  and  outside  of  the  store  door  on  a  piece  of 
wood  nailed  to  the  door,  facing  and  projecting  towards  the 
street?" 

Ihirglary  at  common  law  is  an  ofl'ense  against  the  security  of 
the  habitation,  the  protection  of  the  property  being  an  incident, 
not  the  leading  object. 

The  precinct  of  the  dwelling,  the  place  whore  the  occupier  and 
his  family  resided,  included  only  such  buildings  as  were  used 
with  and  appurtenant  to  it,  and  these  only,  were  the  subjects  of 
l)urglary  at  common  law,  and  to  constitute  this  offense  there 
must  have  been  an  actual  or  constructive  breaking  and  cntrv  in- 
to  the  house. 

The  English  definition  of  burglary  has  been  modified  by  stat- 
ute in  this  and  in  other  states  so  as  to  include  offenses  commit- 
ted in  the  daytime  as  well  as  in  the  niglit,  under  certain  circum- 
stances, and  in  other  buildings  than  the  dwelling  house.    The 


I 


.^M 


MARTINEZ  c.  STATE. 


421 


idea  of  regarding  the  house  as  a  place  of  security  for  the  occu- 
pants, and  a  pluce  of  do])osit  for  liis  goods,  underlies  all  these 
statutes.  l?y  our  code,  burglary  is  constituted  by  entering  a 
house  by  force,  tli;-eats,  or  fraud  at  night,  or  in  like  manner,  by 
entering  a  house  during  the  day  and  remaining  concealed  there- 
in until  night,  with  the  intent  in  either  case  of  conuuitting  a 
felony.  (Pas.  l>ig.,  art.  2'^o'.K)  It  is  not  necessary  that  there 
should  be  any  actual  breaking,  except  when  the  entry  is  made  in 
daytime.     (Arts.,  2300,  2;301.) 

The  code  provides  dili'erent  degrees  of  punishment  for  theft 
without  regard  to  place.  The  article  under  which  the  defendant 
WHS  indicted  is  as  follows:  "  If  any  person  shall  steal  property 
from  a  house  in  such  a  nnuiner  as  that  the  offense  does  not 
come  within  the  deiinltioii  of  burglary,  ho  shall  be  punished 
by  coniinenient  in  the  penitentiary  not  less  than  two  nor  more 
than  ^evon  years."  (Art.  2-IOS.)  AVhero  the  house  entered 
is  a  dwelling  house,  the  punishment  of  burglary  is  imprison- 
ment in  the  penitentiary  not  lees  than  three  nor  uiore  than 
ten  years.  Where  the  house  entered  is  not  a  dwelling  house,  the 
])unishment  is  not  less  than  two  nor  more  than  five  years.  In 
these  cases  the  punishment  is  greater  than  that  for  theft  in  gen- 
eral, as  defined  by  the  code,  where  the  jiroperty  is  under  the 
value  of  twenty  dollars. 

"We  are  of  oi)lnion  that  the  goods  were  not  under  the  protec- 
tion of  the  house,  so  as  to  uuxke  the  taking  theft  from  a  house  in 
the  meaning  of  the  statute,  and  that  the  defendant  was  only  lia- 
ble to  the  ])unishment  prescribed  for  simple  theft. 

The  goods  were  not  deposited  in  the  hoTise  for  safe  custody, 
but  the  witness  says  they  wei'e  hanging  out  to  attract  customers 
or  purchasers. 

The  statutes  of  the  states  cited  in  the  brief  of  counsel,  in  gen- 
eral, punish  theft  in  a  house,  while  other  statutes  referred  to  pun- 
ish theft  from  a  house  as  does  our  code,  and  they  seem  to  use 
these  terms  as  meaning  the  same  thing.  A  different  rule  would 
not  admit  of  any  definite  application. 

A  construction  that  would  make  the  stealing  of  goods  while 
cxi)osed  on  the  street,  and  not  in  the  house,  the  same  oflense  as 
btealinir  from  the  house,  would  be  to  lose  sight  of  the  distinction 
between  ditlereni  offenses  and  the  different  grades  of  punish- 
ment,   and  would    introduce   a  latitude   of   construction  too 


422 


AMERICAN  CRIMINAL  REPORTS. 


1 

llj 

uncertain  to  be  followed  in  the  administration  of  the  criminal 
laws. 
The  judgment  is  reversed  and  case  remanded. 

lievened  and  remaiuled. 


MiDDLETON   VS.  StATK. 

(53  Ga.,  248.) 

Lakceky  fhom  Housk. 

Where  u  biJe  of  cotton  was  stolen  from  an  ulley  way  outwide  of  a  warehouse 
imd  not  in  a  warehouse,  it  wiis  hdd  tJiat  the  defemliuit  w;i8  griiilty  only  of 
oiniple  hu'e/Jiiy. 

A  charjie  tliat  "  if  the  hale  of  cotton  was  in  front  of  the  warehout-i\  mid  iiu1>t 
its  control  and  protection,  steaJiny  it  is  tlie  Hiuue  ott'ense  as  if  the  ball'  of  cut- 
ton  wei-o  actually  within  the  walls  of  the  warehouse,"  i.s  en-or. 

AVaunkij,  C.  J.  The  defendant  was  indicted  for  the  offense  of 
"larceny  from  tlie  house,''  and  on  the  trial  thereof  tlie  jury,  under 
the  char^^eof  the  court,  found  the  defendant  guilty.  A  luotinu 
was  made  for  a  new  trial,  on  the  ground  ut  error  in  the  cliari^'o 
of  the  court  tu  the  jury,  and  because  the  verdict  was  contrary  to 
law  and  the  evidence,  which  motion  was  overruled  and  the  de- 
fendant excepted.  The  defendant  is  charged  in  the  indictment 
with  having  taken  and  carried  away  from  the  warehouse  of  the 
prosecutor  one  bale  of  cotton,  the  said  warehouse  being  a  ])la('e 
where  valuable  goods  were  stored,  witli  intent  to  steal  the  same. 
The  evidence  in  the  record  shows  that  the  bale  of  cotton  was  not 
ill  the  warehouse,  but  o^ihlde  of  it,  in  an  alley  way.  The  court 
charged  the  jury  '"that  if  they  found  from  the  evidence  that  the 
bale  of  cotton  was  in  front  of  the  warehouse  and  under  its  con- 
trol and  protection,  it  would  be  the  samecrimiiudly  as  if  within 
its  walls,  and  would  be  a  taking  from,  ujton  the  same  basis  as  if 
a  storekeeper  places  goods  in  front  of  his  store,  and  a  thief  take 
them  therefrom,  it  would  be  hirceny  from  the  house."  The 
4-il3th  section  of  the  Code  defines  larceny  from  the  house  to  be 
the  breaking  or  entering  said  house,  stealing  thertfroin  any 
money,  goods,  clothes,  wares,  merchandise,  or  anything  or  things 
of  value  whatever.  The  4414:th  section  defines  the  penalty  for 
Btealing  in  any  of  the  liouses  described  in  that  section.  Simitle 
theft  or  larceny  is  the  wrongful  and  fraudulent  taking  and  car- 


dcil. 


TRICE  V.  STATE. 


423 


rying  away  by  any  person,  of  the  personal  goods  of  another,  with 
intent  to  steal  the  same.  Code,  4393.  The  distinction  between 
simple  larceny  and  larceny  from  the  house  will  be  readily  per- 
ceived. The  evidence  in  tlie  record  before  us  does  not  show  that 
the  defendant  was  guilty  of  the  offense  of  larceny  from  the  house, 
inasmuch  as  it  does  not  show  that  the  cotton  alleged  to  have  been 
stolen  was  ui  any  house,  or  that  it  was  taken  by  the  defendant 
thei'tfrom.  The  charge  of  the  court,  in  view  of  the  evidence  con- 
tained in  the  record,  was  error. 
Let  the  judgment  of  the  court  below  be  reversed. 


Pkick  vs.  State. 

(41  Tex.,  215.) 
Lakcenv:    Pracike. 

Throwing  jroods  off  a  railway  train  in  motion,  \^■itll  a  felonious  intent  to  appro- 
priate them,  is  larceny. 

The  comt  will  not  consider  on  appeal  iui  objection  not  raised  on  the  trial  that 
tlie  niune  of  a  corporation  was  not  proven  accortliny  to  tlie  fact. 

Ivohkuts,  C.  J.  The  defendant  is  charged  witli  the  tlieft  of  a 
bale  of  cotton  from  a  train  of  the  lEouston  6c  Texas  Central 
llailroad  C<)m])any,  being  the  pro])erty  of  said  company. 

It  was  pnn-ed  that  defendant,  being  on  the  train  at  night, 
threw  off  a  bale  of  cotton  privately,  he  having  got  on  the  train  to 
ride  a  small  distance,  and  upon  finding  tliat  the  brakeman,  who 
saw  him  do  it,  was  going  to  report  him  to  tlie  conductor,  ho 
jumped  from  the  train  to  escape  arrest,  and  could  not  afterwards 
be  found  on  the  train. 

It  is  objected  in  defense,  that  the  act  of  throwing  off  the  bale 
of  cotton  under  the  circumstances  was  not  such  a  taking  into 
possession  of  the  bale  of  cotton  as  amounted  to  a  complete  act  of 
theft.  The  cotton  was  removed  from  the  position  on  the  train 
wliere  it  was  placed  by  the  owners,  and  removed  from  their  pos- 
session by  being  thrown  oil'  of  the  train  by  him.  The  fact  and 
circumstances  connected  with  the  act  justified  tlie  jury  in  con- 
cluding that  it  was  done  to  convert  the  cotton  to  his  own  use. 

It  is  objected  also  that  the  proper  name  of  the  company  is  the 
Houston   ct   Te.xas   Central   llailway   Company,  and   not    the 


AMERICAN  CRIMINAL  REPORTS. 


mm  iii 


M 


Houston  *fe  Texas  Central  "Railroad  Company,  as  it  was  alleged 
and  proved  on  the  trial.  To  this  it  may  be  answered  that  it  was 
a  matter  of  fact  not  raised  on  the  trial,  and  only  to  be  ascertaiued 
by  reference  to  the  private  act  of  the  legislature  constituting  tl>c 
charter  of  the  company.  It  was  not  necessary  to  set  out  the 
cliarter  in  the  indictment,  or  to  allege  it  to  be  a  chartered  com- 
pany otlierwise  than  by  name,  as  was  done  in  tl»is  csise.  Arcli. 
PI,  ik.  l*r.,  note,  271;  Peoj}Ie  v.  Carllnfj,  1  Johns.,  320. 

The  ]">roof  corresponds  with  the  indictment  as  to  tlie  name  of 
the  com])aiiy,  and  there  was  no  (question  made  in  relation  to  it 
on  the  trial  in  any  way. 

Tlie  proof  of  allhi,  attempted  as  a  defense,  being  wliolly  de- 
pendent on  the  ])articular  date,  which  was  not  Hxcd  with  cer- 
tainty, is  not  of  a  character  to  reverse  the  finding  of  the  jury. 

Finding  no  material  error  in  the  charge  of  tlie  court,  and  there 

being  evidence  sufficient  to  sustain  the  verdict,  the  judgment  will 

be  aflirmed. 

Jxi(l<jm<nt  affirmed. 


Flynn  vs.  State. 

(42  Tex.,  301.) 

L.VKCKNY :    A  nimiaiion. 


On  a  trial  for  hu'ccny  from  tJio  poi-son,  it  iiiipcai-fyl  tlmt  rospoiulcnt  put  his 
liiuid  ijito  tlio  proh^ecutor's  jiockot  iind  tookliis  ivxkt'tbook  in  his  hand,  drow 
it  half  way  out  of  the  pocket,  when,  beiiifr  iliscovered,  ho  let  it  ^'O  and  ran 
off.  Ifehl,  a  sufticiout  asportation,  ajid  tliat  respondent  was  i^ulty  of 
larceny. 

Dkvi.nk,  J.  The  appellant,  with  James  Anderson  and  George 
Wheeler,  was  jointly  indicted  for  theft  from  the  person  of 
Xicholas  AValsh.  The  charge  was  dismissed  as  to  Ander.son,  the 
deicndant  Flynn  alone  being  tried.  The  jury  found  him  guilty, 
and  assessed  his  punishment  at  five  years  in  the  penitentiary. 

The  errors  assigned  are,  that  the  charge  of  the  court  was  con- 
trary to  law,  and  that  it  misled  the  jury;  that  the  court  erred  in 
refusing  the  charge  asked  by  defendant;  that  the  verdict  of  the 
jury  was  not  warranted  by  the  evidence,  and  that  the  court  erred 
in  overruling  the  motion  for  a  new  trial. 

The  charge  of  the  court  was  clear,  concise,  and  embraced  the 


FLYNN  V.  STATE. 


425 


law  applicable  to  the  case;  it  directed  the  mind  of  the  jury  to 
the  law,  which  had  reference  only  to  the  facts  in  evidence;  it 
was  quite  as  favorable  to  the  accnseil  as  the  evidence  demanded, 
or  the  law  permitted.  We  find  no  error  in  the  charge.  The 
rtfus^al  of  the  court  to  give  the  instructions  asked  for  defendant 
\va.«,  under  the  facts  of  the  case  and  the  law,  a  proper  exercise  of 
discretion.  Tlie  evidence,  uncontradicted,  shows  that  while 
appellant's  codefendant  and  associate  (Wheeler)  was  "jostling 
against  him  (Walsh),  and  impeding  his  exit  from  the  crowd  at 
the  theater,  appellant  forced  his  hand  into  AYalsh's  pocket,  took 
the  pocket  book  into  his  hand,  and  drew  it  half  way  out  of  the 
pocket,  when  the  owner,  feeling  the  movement,  turned  suddenly 
around,  and,  with  an  angry  exclamation,  disconcerted  the  ac- 
cused, who  then  made  his  escape;  the  witness  stating  further 
that  he  resisted  defendant's  going  away  with  the  book,  as  [well] 
as  he  could,  on  finding  him  withdraw  it.  The  accused  was  in- 
dieted  under  article  702  of  the  Criminal  Code.  Article  763  de- 
fines the  necessary  requisites  to  constitute  the  offense: 

1st.  A  thef*  from  the  person. 

2d.  The  commission  of  the  theft  without  the  knowledge  of  the 
person  from  whom  the  jirojierty  is  taken,  or  so  suddenly  as  not 
to  allow  time  to  make  resistance  before  the  property  is  carried 
away;  and, 

3d.  "  It  is  only  necessary  that  the  property  stolen  should  have 
gone  into  the  possession  of  the  thief;  it  need  not  be  carried  away 
in  order  to  complete  the  oflense."  In  the  present  case  it  was 
fcikeu  from  the  person,  from  the  place  where  the  owner  had  de- 
posited it. 

4th.  While  Walsh  wa.s  annoyed  and  his  attention  attracted  by 
Wheeler,  the  defendant  (in  the  language  of  the  code)  "  private- 
ly "  took  into  his  possession  the  pocketbook,  and  without  the 
knowledge  of  the  owner. 

oth.  The  evidence  shows  ho  had,  or  held  it  in  his  hand,  had 
removed  it  half  out  of  the  pocket  —  a  sufticient  possession,  with- 
in the  letter  and  spirit  of  the  code,  of  property  so  small  and 
portable  as  the  article  taken.  The  ])rovision  in  article  703, 
which  dispenses  with  the  necessity  of  proving  the  carrying  away 
of  property  stolen  from  the  person,  and  which  makes  the  mere 
going  into  the  possession  of  the  thief,  of  such  property,  sufficient 
proof,  justified  the  court  in  refusing  the  instruction  asked. 


426 


AMERICAN  CRIMINAL  RErORTS. 


The  object  of  the  fratners  of  tlie  code,  in  prescribing  the  same 
puuishmeut  for  theft  from  the  person  and  theft  from  a  house, 
was  evidently  to  give  to  the  property  or  tlie  person  the  same  de- 
gree of  ])rotection  as  is  given  to  property  in  a  house;  in  tlie  lust 
wise  it  is  not  necessary  to  sliow  a  removal  of  the  projierty  chai-frod 
to  have  bc'cn  taken  from  the  house;  the  reason  of  the  rule  U 
quite  as  strong  when  apjdied  to  property  on  the  person,  and  tlie 
code  has  removed  doubt  on  this  subject  by  declaring  the  otleiiso 
complete  when  the  property  charged  to  have  been  stolen  is  taken 
into  the  possession  of  the  person  charged  with  the  theft.  That 
the  ofl'ense  is  complete  when  the  proi)erty  is  taken  into  iiosses.sion 
was  so  held  in  a  case  decided  during  the  late  session  at  Tyler, 
where  a  party  attempted  to  steal  money  during  the  night  from 
the  clothing  of  a  companion  with  wliom  he  was  traveling. 

The  evidence  sustains  the  verdict,  and  there  was  no  error  in 
overruling  the  motion  for  a  new  trial. 

AJi/'//inl. 


ij.    w  ii    ^• 


King  vs.  State. 
(54  (ia.,  184.) 
Simple  L.\ncEXv :    Larceny  from  the  p'jruoti. 

Simple  larcony  luid  larceny  from  the  iwrson  are  distiiiut  odVawos,  lunl  wWn 
sLiupli'  larwny  is  a  ^Tcatcr  criiiu!  tluui  liirc<'ny  from  tlu;  person  (as  it  is  on 
tlie  fat't.sof  tliis  Ciu^u).  tlie  respoiuleiit  earmotbe  convicted  of  a  simple  larceny 
on  evidence  wlucli  establishes  a  larceny  from  the  person. 

"NVaunku,  C.  J.  The  defendant  was  indicted  for  the  otlenseof 
"  6im])le  larceny  "  under  the  -A-iOUth  section  of  the  code,  and 
charged  with  having  wrongfully,  fraudulently  and  privately, 
ttiken  and  carried  away,  with  intent  to  steal  the  same,  certain 
described  United  States  national  currency  notes,  tif  the  value  of 
twelve  dollars.  The  evidence  ujion  the  trial  ]>roved  a  technieal 
"  larceny  from  the  person."'  The  jury,  under  the  charge  of  the 
court,  found  the  defendant  guilty. 

A  motion  was  made  for  a  new  trial,  on  the  ground  that  the 
court  erred  in  charging  the  jury  that  they  could  find  the  defend- 
ant guilty  of  simple  larceny,  as  define<l  by  the  ■i40(>th  section  of 
the  oode,  notwithstanding  the  evidence  showed  that  it  was  a 
technical  larceny  from  the  j)ei\^i)ii.  The  court  overruled  the 
motion,  and  the  defendant  excepted. 


KING  V.  STATE. 


427 


By  the  -tiOGth  section  of  the  code,  it  is  declared  that  if  any 
person  shall  take  and  carry  away  any  bond,  note,  bank  bill  or 
due  bill,  or  paper  or  papers,  securin<^  the  jiayinentof  money,  etc., 
Avith  intent  to  steal  the  same,  snch  person  shall  be  guilty  of 
siin})le  larcen}'.  ]iy  the  illOth  section,  theft  or  larceny  from 
the  i)erson  is  defined  to  be  the  wrongful  and  fraudulent  taking 
of  money,  goods,  chattels  or  eflects,  or  any  article  of  value  from 
the  person  of  another  privately,  without  his  knowledge,  in  any 
place  whatever,  with  intent  to  steal  the  same. 

"  Sim])le  larceny,"  and  "  larceny  from  the  person  "  are  two 
distinct  oflenses  under  the  code.  It  is  true,  that  if  any  jierson 
shall  take  and  carry  away  any  bond,  note,  bank  bill,  etc.,  with 
intent  to  steal  the  same,  such  person  is  guilty  of  simple  larceny; 
and  it  is  also  true,  that  if  any  person  shall  wrongfully  and 
fi-audulently  take  and  carry  away  the  personal  goods  of  another, 
other  than  Iwnds,  notes,  bank  bills,  etc.,  with  intent  to  steal  the 
same,  he  would  be  guilty  of  simple  larceny,  but  it  does  not  fol- 
\{)\\  that  if  bonds,  notes,  bank  bills,  etc.,  are  taken  from  the 
jwraon-  of  another  jirivately  and  without  his  knowledge,  that  the 
party  defendant  so  taking  the  same  maybe  indicted  and  punished 
for  the  oflense  of  simple  larceny.  If  one  should  take  and  carry 
away  a  box  of  jewelry,  with  intent  to  steal  the  same,  he  would 
l)e  guilty  of  simple  larceny,  but  if  one  should  take  a  box  of 
jewelry  from  the  j}t'i\^o)i  of  another,  privately,  without  his  knowl- 
edge, with  intent  to  steal  the  same,  he  would  be  guilty  of  lar- 
ceny from  the  person.  So  in  this  case,  if  the  defendant  had  not 
taken  the  currency  bills  from  the  j^at'soii  of  another  privately, 
and  without  his  knowledge,  he  might  have  been  indicted  and 
jtunished  for  the  offense  of  simple  larceny,  but  as  the  evidence 
shows  that  he  was  guilty  of  larceny  from  the  2>crson,  he  should 
have  been  indicted  and  punished  for  that  offense. 

Simple  larceny  and  larceny  from  the  person,  as  Ixjfore  re- 
marked, are  two  distinct  offenses,  and  the  pnnishment  is  differ- 
ent. Simple  larceny  of  curreiicy  notes,  under  the  ilOOth  section 
of  the  code,  is  punished  as  a  felony  by  imprisonment  in  the 
penitentiary  for  not  less  than  one  year  nor  longer  than  four  years, 
whereas,  strange  as  it  may  appear,  larceny  from  the  j)erson  oi 
currency  notes  is  only  punishable  as  a  misdemeanor  under  the 
provisions  of  the  act  of  ISCG,  reducing  certain  crimes  below 
felonies.    The  lesidt,  therefore,  is,  in  relation  to  the  case  now 


■■tl 


428 


AMERICAN  CRIMINAL  REPORTS. 


1 

1 

'  k 


before  US,  that  the  dcfemlant  has  been  indicted  and  found  guilty 
of  a  felony,  for  which  ho  may  be  punished  by  inii)risounient  in 
the  penitentiary  for  not  less  than  one  year  nor  loni,'er  than  fuur 
years,  when  if  ho  had  been  indicted  for  larceny  from  t/ic  jt,  rsnn, 
the  (.iTense  of  which  it  is  admitted  the  evidence  proved  him  to 
have  been  guilty,  he  could  only  have  been  punished,  as  the  luw 
now  stands,  as  for  a  misdemeanor.  It  might  be  ix.  coio'oiii nc 
icay  to  indict  the  defendant  for  simple  larceny  and  ])uiiish  him 
as  for  ix  felony  under  the  440Gth  section  of  the  code,  when  the 
evidence  ])roved  he  was  guilty  of  larceny  from  the  person,  and 
oould  oidy  be  juinished  therefor  as  for  a  misdemeanor.  The 
simple  objection  to  this  course  of  proceeding  is,  that  the  penal 
laws  of  the  state  do  not  authorize  it.  There  are  four  distinct 
classes  of  larceny  recognized  by  the  penal  code  of  this  state: 
1st.  Simple  larceny;  2d.  Larceny  from  the  person;  3d.  L:i,rceny 
from  the  house;  4th.  Larceny  after  a  trust  or  confidence  has  been 
delegated  or  rei)0sed.     Code,  §  431>2. 

If  any  person  shall  steal  currency  notes,  or  other  c/ionrfi  iu 
action,  or  any  article  of  value  from  the  person  of  another, 
privately,  without  his  knowledge,  in  any  ])lace  whtitever,  such 
person  is  guilty  of  the  offense  of  larceny  from  t/ie  j>e /'.son,  ami 
should  be  indicted  therefor  and  ])uiiished  as  prescribed  hy  law 
for  t/uit  ojft'nsc.  If  any  person  shall  steal  and  carry  away  any 
currency  notes,  or  other  valuable  thing  as  descril>e<l  in  section 
440(5,  othcncise  than  f  rem  the  2'>c^'>^on  of  another,  such  ])erson  is 
guilty  of  simple  larceny,  and  should  be  indicted  therefor,  ami 
punished  as  prescribed  by  law  for  that  ofl'ense.  Penal  laws  are 
to  be  construed  atrlrtlij,  therefore  the  defendant  in  this  case 
could  not  legally  have  been  convicted  and  punished  for  the  of- 
fense of  simple  larceny,  under  the  4400111  section  of  the  code, 
which  is  a  felony,  when  the  evidence  clearly  ])roved  that  he  was 
only  guilty  of  the  offense  of  larceny  from  the  person,  which  is 
not  a  felonv,  but  a  misdemeanor.  The  offense  of  a  misdemeanor 
under  the  law  cannot  be  converted  into  ^felony 'a,\\^  punished  as 
such,  in  that  vxiy,  without  a  violation  of  the  fundamental  prin- 
ciples of  the  penal  laws  of  the  state.  In  our  judgment  the  court 
erred  in  overruling  the  defendant's  motion  for  a  new  trial. 

Let  the  judgment  of  the  court  below  be  reversed. 


^^3 


STATE  V.  GRAVES.  429 

State  vs.  Gkavks. 

(72  N.  C,  482.) 

BuiiGLAnY  AND  Laiiceny:    Effect  of  2)OK8cii!i'\on  of  stohi\ propctii/. 

On  a  trial  for  burglary  and  laacny,  whore  evidence  was  tfivon  that  the  respond- 
ent was  found  in  iJOssoHsion  of  the  watch  and  cliain  stolen,  witliin  forty 
houi-s  after  the  burghuy,  it  is  ciTor  to  charge  tliat  if  the  jury  believes  this 
fact,  the  law  presumes  that  ho  is  the  thief  and  tluit  ho  has  stolen  tlio  watch 
and  chain,  and  he  is  bound  to  explain  !sati!jfiU.toiiIy  how  he  came  Ijy  the 
goods. 

Tlio  rule  in  North  Carolina  as  to  the  effect  of  the  possession  of  stolen  property 
is  tills ;  "  When  goods  are  stolen,  one  found  in  posscMjiou  so  soon  thereaf- 
t<n'  that  he  could  not  reasonably  have  got  the  possession  unless  he  had  stolen 
them  himself,  the  law  pi'osunies  ho  was  the  thief." 

Inpictmkxt  for  burglary,  tried  before  Kekr,  J.,  at  December 
term,  1874,  Guilford  Superior  Court. 

The  burglary  alleged  was  the  breaking  into  and  entering  the 
house  of  J.  I.  Scales,  in  the  city  of  Greensboro,  N.  C,  on  the 
night  of  the  8th  of  August,  with  the  intent  to  steal,  and  stealing 
and  carrying  away  a  watch  and  chain,  the  property  of  J.  I.  Scales. 

Tlicre  was  evidence  tending  to  prove  that  between  nine  o'clock 
on  that  night  and  two  o'clock  A.  M.  of  the  !jth  of  August,  Mr. 
Scales'  house  was  entered  by  some  one  forcing  open  the  blinds 
and  raising  the  window  sash  of  a  room  called  the  nursery;  that 
between  that  room  and  the  bed- chamber  was  the  dining-room; 
that  a  lamp  was  left  burning  in  the  dining-room,  from  which  a 
light  shone  into  both  the  nursery  and  bed-chamber.  That  Scales 
went  to  bed  about  nine  o'clock,  and  hung  his  coat  and  vest  on 
the  back  of  a  chair  in  liis  bed-room,  the  watch  being  in  the  vest 
pocket,  and  attached  thereto  by  the  chain. 

That  Jeimie  Stevens,  a  colored  servant  girl,  was  in  the  house 
when  Scales  went  to  bed,  at  what  time  she  left  the  bouse  was 
not  shown,  further  than  that  she  left  during  the  night  and  went 
to  her  usual  place  of  sleeping. 

It  was  further  in  evidence  that  the  prisoner  was  in  Danville, 
in  the  state  of  Virginia,  on  the  10th  of  August,  and  had  the 
watch  and  chain  in  his  possession,  and  swapped  them  off  for  an- 
other watch  and  chain,  getting  boot. 

It  was  in  evidence  that  the  prisoner  was  in  Rockingham 
county  on  the  6tli  of  August,  at  the  election,  and  also  on  the 
uight  of  the  6th,  and  that  he  said  on  that  night  that  he  was  going 


■0\ 

m 

Iv.' 


'•  i  ? 


430 


AMKHICAX  CllIMINAL  R?:PORTS. 


>'  Of  •  rt    h 


i 


to  Grociisl)on>  tlio  next  day,  and  did  leave  the  house  at  wliich 
he  was  8to])jMng  the  next  day. 

There  was  no  evidence  that  he  was  in  Greensboro  on  tlie  niglit 
in  whicli  tlie  alleged  burglary  was  committed. 

The  ])ri.soner  was  arrested  about  the  4th  of  September,  in 
Koekingham.  and  brought  to  (Greensboro  jail.  When  arrested, 
tlie  j>risoner  denied  the  charge. 

AVhen  in  prison,  the  prisoner  told  Scales  that  he  got  the  watcli 
and  chain  from  John  and  Dennis  Sellars  on  Sunday  niglit,  tlio 
Jith  of  AugU!?t,  and  that  they  told  him  to  take  them  to  Dauvillo 
and  trade  them  off'.  The  prisoner  at  first  told  Scales  that  lie  did 
not  IsTiow  the  watch,  Init  in  a  few  minutes  afterwards,  adiiiitteil 
that  he  did  know  the  watch  as  soon  as  he  saw  it;  that  he  litiil 
seen  Scales  wear  it  a  hundred  times. 

It  was  proven  that  the  jirisoner,  preceding  and  up  to  July, 
had  been  a  servant  of  Scales,  and  often  in  his  house  and  the 
rooms  therei>f.  That  on  the  first  or  second  day  after  the  watch 
was  st(dcn,  Scales  had  Jennie  Stevens,  his  servant,  and  one  Jim 
Edwell,  arrested  on  the  charge  of  committing  the  crime.  Tliiit 
on  the  night  of  the  alleged  burglary,  Jim  Kdwell  was  seen  about 
dark  dodging  behind  a  tree  at  the  corner  of  the  house,  near  the 
window  allege<l  to  have  been  broken  open.  That  he  was  halted 
by  a  servant  man  twice  before  he  did  so,  near  the  front  gate  of 
the  residence  of  Scales.  That  some  hour  or  two  afterwards,  this 
servant  and  Jennie  Stevens  went  out  of  the  front  gate  and  saw 
Edwell  alone  again  passing;  that  he  walked  before  them  a  half 
mile,  and  Jennie  Stevens  ha<l  a  conversation  with  him  which 
the  witness  did  not  hear.  That  Jennie  Stevens  had  a  small  bun- 
dle which  she  gave  to  witness  to  hold  while  she  talked  with 
Edwell.  That  about  an  hour  afterwards,  witness  saw  Edwell  in 
about  cnc  hundred  yards  of  Scales'  house  talking  to  a  colored 
man. 

It  was  also  in  evidence  that  when  the  prisoner  had  the  watch 
in  his  possession  and  was  ottering  to  exchange  it  for  another,  he 
said  that  he  had  bought  it  of  a  broker  for  r^40,  and  in  a  few 
minutes  he  told  another  person  that  lie  gave  f^4-S  for  it,  and  said 
that  he  made  a  mistake  when  he  said  he  gave  840.  It  was  also 
shown  that  when  the  ])risoner  was  arrested,  he  was  concealed 
nnder  a  bed,  and  had  tried  to  escape  up  a  chimney. 

His  honor,  among  other  things,  charged  the  jury  that  if  they 


fvt  whicli 

tlie  ni^'ht 

Miil.(>r,  in 
iinvwtt'd, 

tlie  Wfitdi 
li.^c'it,  tlio 
iMitvillu 
!it  Iio  dill 
iuliiiittt'd 
t  ho  IukI 

to  July, 
and  the 
he  watch 
one  ,Iiiu 
le.     That 
Jen  ahuiit 
1  near  tlio 
'ii!^  lialtt'd 
it  p:ate  of 
iinls,  this 
!  and  saw 
ni  a  half 
111  which 
iiall  Idiu- 
ced  with 
Mwcll  in 
L  colored 

le  watch 
ither,  he 
n  a  few 
and  8ai(l 
WiiA  alsi) 
oncealed 

if  they 


STATE  r.  GRAVES. 


481 


believed  from  the  evidence  tliat  the  prisoner  waa  in  possession 
of  tlie  watcli  and  cliain  in  Dainille,  Virf^lnia,  on  tlie  ^[onchiy  af- 
ter  the  watch  was  stolen  on  Satnrday  nij^ht,  the  law  presumed 
that  he  was  the  thief,  and  that  he  was  hound  to  explain  satisfac- 
torily how  he  came  hy  it. 

The  prisoner  excei)ted.  The  prisoner's  counsel  asked  his  lionor 
to  charge  "  that  if  there  was  any  reasonahle  hypothesis  arising 
out  of  or  suggested  hy  the  evidence  hy  which,  taking  all  the  facts 
proven  to  he  true  and  lie  not  guilty,  that  the  jury  should  acquit 
the  prisoner."  Ilis  honor  charged  the  jury  that  in  giving  to  the 
prisoner  the  benefit  of  the  reasonable  doubt,  tl.'ey  should  not  be 
controlled  b}'  mere  conjecture  that  some  (me  else  did  the  deed; 
that  they  must  be  fully  satlsfio<l  that  the  prisoner  did  the  deed." 
Prisoner  excepted.  There  was  a  verdict  of  guilty,  rule  discharged, 
judgment  of  death  pronounced,  and  the  prisoner  appealed. 

fSrott  (5  Cdhlwell,  for  the  defendant.  Attorney  (lenerul  Ilar- 
(jrane,  for  tlie  state. 

Pearson,  C  J.  The  fact  that  the  "  watch  and  chain  "  were 
found  in  the  possession  of  the  prisoner  at  Danville,  on  the  Mon- 
day after  the  burglary  on  the  Saturday  night  preceding,  at  Greens- 
boro, connected  with  the  fact  that  he  was  otFering  to  dispose  of 
the  articles  iit  much  less  than  their  value,  and  made  contradic- 
tory statements  as  to  how  he  got  them,  Avere  matters  tending  to 
show  cither  that  the  prisoner  was  the  man  who  broke  and  en- 
tered the  dwelling  house  and  stole  the  watch  and  chain,  or  else 
that  he  had  received  the  goods,  knowing  them  to  have  been  sto- 
len. These  facts,  taken  in  connection  with  the  evidence  of  the 
mysterious  movements  of  Jiin  Edwell  and  Jennie  Stevens,  about 
the  premises  on  the  night  of  the  burglary,  were  fit  subjects  for 
the  consideration  of  the  jury. 

His  honor  committed  manifest  error  in  taking  the  case  from 
the  jury  and  ruling  that  "if  the  jury  believed  from  the  evidence 
that  the  prisoner  was  in  ])()Sfession  of  the  watch  and  chain  in 
Danville  on  the  INEonday  after  the  watch  and  chain  were  stolen  ou 
Saturday  night  in  (ireonboro,  t/w  Ja/r  jnvsuine^I  /w  loast/ie  thief ^ 
and  had  sti»len  the  watch  and  chain,  and  that  the  prisoner  was 
bound  to  explain  satisfactorily  how  he  came  hy  the  goods."  The 
rule  is  this:  "  ANTliere  goods  are  stolen,  one  found  in  jwssession 
so  soon  thereafter,  that  he  could  not  have  reasomihhj  gotthe;pos- 


I'  -m 

.  w 

V.  f   I' 


W 


432 


AMKRICAN  CRIMINAL  RErOUTS. 


i:f. 


H-/-. 


i'i 


lit 


'i'  m 


.i\ 


i  "... 

!  "I 


8i't>so(>u  nnliHH  he  lind  stolen  them  himself,  the  law  presumes  ho 
WU8  the  thief." 

Tliis  is  siiiijtly  a  deduction  of  comnion  sense,  and  when  the 
fiict  is  so  pl.'iin  that  there  can  he  no  mistake  iihout  it,  our  eourl;!, 
followiiii^  the  practice  in  Eiii,'huul,  where  the  j»nl;,'e  is  allowed  to 
express  his  o])inion  as  to  the  weij^ht  of  the  evidence,  have  adojtted 
it  as  a  rule  (»f  law,  Mhich  the  jud^e  is  at  liherty  to  act  on,  not- 
withstanding  the  statute,  which  forbids  a  jud^'e  from  intiniat- 
tin<^  an  (»j)inion  as  to  the  wei<j;ht  of  the  evidence.  I'ut  this  rule, 
like  that  ai  falnum  in  iiuo^fithitiib  iii  ot/inifiun,  •mu]  the  pro- 
sumpti(»n  of  fraud,  as  a  )naitvrt>f]au\  from  certain  fiduciary  re- 
lations (see  Peni'ci',  v.  Lck,  (iS  N.  C,  }>(>),  has  been  reduced 
to  very  luirrow  proportions,  and  is  never  aj)plicable  when  it  is 
necessary  to  resort  to  other  evidence  to  support  the  conclu^ioll; 
in  other  words,  the  fact  of  ^uilt  must  be  self-emlent  from  the 
ljaref(Ui  of  being  found  in  the  possession  of  the  stolen  goods, 
in  order  to  justify  the  judge  in  laying  it  down,  as  a  presuuij)tioii 
made  by  the  law,  otherwise  it  is  a  case  dei)endiiig  on  circumstan- 
tial evidence,  to  be  passed  on  by  the  jury. 

In  our  case,  so  far  from  the  fact  of  guilt,  to  wit:  that  the  pris. 
oner  broke  and  entered  the  house  and  stole  the  watch  and  chain, 
being    self-evident,  it  is    a    matter  which,  nnder    the   oircum- 
stances  proved,  admits  of  grave  doubt,  T  r  it  may  well  1     tlial 
prisoner   merely  received  the  watch  and  chain  "rne  one 

else  had  committed  the  burglary,  which  wouh  .,'e  the  gradf 

of  the  crime  very  materially.  As  the  case  got  ick  for  another 
trial,  it  is  a  nu'^ter  for  the  solicitor  of  the  state  to  consider 
whether  it  will  iio'.  be  well  to  send  a  new  bill  containing  other 
counts  to  meet  the  different  aspects  of  the  case,  as  it  may  bo 
looked  upon  by  the  jury. 

Error. 

PebCukiam:  Venire  de  novo. 


State  vs.  "Walker. 

(41  Iowa,  217.) 

BmcLAUT  AXD  Larceny:    Effect  of  recent  possesswn. 


A  chaxgo  which  instructs  Uie  jury  that  proof  of  poascssion  of  piirt  of  the  stolon 
goods,  four  months  after  tlic  commission  of  tlie  crime,  no  rotiBonable  explau- 


STATE  V.  WALKKR. 


433 


alion  Wma  yiveii  of  the  poHscK.^ioii,  shoulil  bo  rofjariled  as  raising  a  strong 

l)n'siiiiiiition  of  guilt,  is  t'rroncou.i. 
llic  rule  in,  tluit  trmif  pOHNCMsionof  ntolcn  property,  uniiccoimtoil  for,  isa  Htroni; 

pri'Hiiniption  ov  prima  fttcii;  cVuWm'i^  of  guilt. 
W'liiit  id  rcwnt  posfluKsion  in  a  (picdtion  of  fact,  to  be  snliniittcil  to  the  juiy, 

ex(>'i>t  in  tliosu  cmi'h  wlioro  tlio  court,  in  favor  of  the  prisoner,  can  say,  aa  a 

matter  of  law,  that  posHcsslon  in  not  recent. 


•It! 


ffl 


!       '  1 


I'    I 


]^[I^^KU,  C.  J.  The  court,  ainonj^  other  instructions  to  the 
jury,  cliar^cd  118  follows: 

"  If  you  find  that  the  store  of  the  witnesses,  S.  E.  ik  John 
Johnson,  was  hur^'lariously  entered,  about  the  ni<ifht  of  the  3duf 
Ft'])ruary,  1S73,  and  a  larj^e  (juantity  and  variety  of  goods  stolen 
tluTofroni,  and  that  the  following  June  diflerent  portions  and 
varieties  of  the  same  goods  were  found  in  the  premises  of  the 
accused,  and  you  further  iind  that  the  defendant  has  been  unable 
to  give  any  reasoiuible  explanation  of  how  he  came  by  such  pos- 
aossion,  then  such  facts  should  be  regarded  by  the  jury  as  rais- 
ing a  strong  ])resumption  that  the  defendant  was  himself  guilty 
of  feloniously  taking  the  property." 

This  instruction  is  erroneous.  The  rule  is  well  settled  that 
the  vcccut  possession  of  stolen  property,  unaccounted  f(tr,  is  a 
strong  presumption,  oy pv'ima facie  evidence,  of  guilt.  Wurreii 
V.  Tin:  State,  1  (}.  Greene,  100;  21ic  State  v.  Taijlur,  25  Iowa,  273; 
The  State  v.  Unuhj,  27  id.,  120;  Jomn  v.  The  People,  12  111., 
25!);  Ci>iiniionvu:alth  v.  Jlillard,  1  Mass.,  0;  3  Greenl.  Ev.,  j'^31, 
32  and  3:',. 

What  is  to  be  termed  recent  possession  depends  very  much 
upon  the  character  of  the  goods  stolen.  If  they  are  such  as  pass 
readily  from  hand  to  hand,  the  possession,  in  order  to  raise  a 
l^'esuniption  of  guilt,  should  be  much  more  recent  than  if  they 
were  of  a  class  of  property  that  circulated  more  slowly,  or  is 
rarcly  transmitted. 

There  may  be  cases  where  the  possession  is  so  long  after  the 
commission  of  the  crime  that  a  court  will  refuse  to  submit  the 
(piestion  to  the  jury  —  deciding,  as  a  matter  of  law,  that  the 
poss<ission  is  not  recent  —  but  in  all  other  cases  the  question  is 
one  of  fact,  to  be  submitted  to  the  jury.  See  lie.v  v.  Partridge, 
7  Car.  »fc  r.,  551;  The  State  v.  Bennett,  3  Brev.,5U;  The  Stato 
V.  Jonen,  3  Dev.  &  Bat.,  122;  Ecx  v.  Adams,  3  Car.  &  P.,  000; 
licgina  v.  CrtUtemlcn,  6  Jar.,  207;  Commomoealth  v.  Jlonf- 
Vol.  I. -28 


'^■:'     i 

■■  .'Sf:-i1t: 

HP'*''  'Wk 

Wlmi 

434 


AMERICAN  CL'IMINaL  REPORTS. 


(jomcnj,  11  Mete,   534;  Ewjleman  v.  The  State,  2  Ind.,  91; 
Price  V.  The  State,  840. 

The  instruction  was  erroneous,  in  that  it  directed  tlie  jury 
that,  as  a  matter  of  law,  proof  of  possession  of  part  of  the  stuleu 
goods  four  months  after  tlie  commission  of  the  crime  was  recent 
possession,  from  which  a  strong  presumption  of  guilt  arose,  un- 
less the  possession  was  satisfactorily  explained.  The  judgment 
must,  therefore,  be  reversed,  and  a  new  trial  ordered. 

Reversed. 


tW 


I'll 


t 

1 

1 

■ 

■ 

»  ^' 

^  ^ 

i 

F 

f    f 

W'  ' 

1 

*    J 

1-    1 

'» 

] 

;>      I 

Yates  vs.  State. 

(M  Tex.,  202.) 

Larceny:    EJfed  of  recent  possess^.on. 

FosJ'Ossion  of  a  stolen  feather  V)eil  and  .some  l)C(l  clothings,  five  months  after  tliey 
\vero  stolen,  is  not  such  recent  possession  a.s  of  itself  to  raisi'  a  legal  jue- 
HUiiiption  that  tlie  party  in  po.siiession  is  the  thief.  It  is  men'ly  a  circum- 
stance to  be  subinitteJ  to  tlic  jury  in  connection  with  otiier  evicleiiv.e. 

Ogdkn,  J.  The  first  clause  of  the  charge  of  the  court  in  tliis 
case  is  in  these  words:  "Property  recently  stolen  heing  found 
in  the  possession  of  a  person,  the  law  presumes  that  jiersoJi  to  be 
the  thief,  and  such  person  must  rebut  the  presumption  by  proof, 
such  as  having  bought  the  property  in  a  public  manner."  AVe 
think  there  is  error  in  this  charge,  especially  when  ajij^lied  to 
the  facts  as  proven  on  the  trial  of  this  -ase. 

Easter  Waggoner,  on  the  last  da}'  of  December  or  first  day  uf 
January,  had  taken  from  her  house,  by  some  person  unknown 
to  her,  a  feather  1)ed  and  some  bed  <3lothing,  and  m  the  first  of 
June  followiiiir  the  de])utv  sheritF  found  the  missin:;  articles  in 
appellant's  house.  Five  months  had  elapsed  since  the  pr(i[ioi'ty 
had  been  missed  from  the  house  of  the  owner,  before  it  was 
found  in  the  jiossession  of  the  ajipellant,  and  it  may  have  changed 
hand:!  several  times  during  that  period;  and  we  catmot  subscribe 
to  the  doctrine  laid  down  l)y  the  court,  that  the  possession  of 
this  property,  admitting  it  to  have  been  stolen,  was  so  recent 
after  the  theft  as  to  raise  the  legal  presumption  that  the  party 
in  possession  is  the  thief.  It  was  a  circumstance  which  n)iglit 
very  properly  liave  been  submitted  to  the  jury,  in  connection 
with  other  evidence  of  guilt;  but  wc  do  not  think  this  evidence 


VAITS  r.  STATE. 


435 


of  possession,  alone,  sufficient  to  warrant  a  conviction,  and  yet 
the  oliar^i^e  of  the  court  would  appear  to  give  it  that  dcgi*ee  of 
importance. 

Possession  of  L^tolen  property,  however  remote  from  the  date 
of  the  theft,  may  be  said  to  raise  a  presum]>tion  of  a  guilty  pcs- 
gcssion;  hut  that  presumption  must  necessarily  greatly  diminish 
as  time  elapses,  until  it  becomes  so  sliglit  as  to  hardly  make  an 
impression  upon  a  rejecting  mind. 

3Ir.  Bishop,  after  reviewing  nmny  decisions  on  this  question, 
seems  to  come  to  the  conclusion  that  the  simple  possession  of 
stolen  goods,  however  recent  after  the  theft,  does  not  raise  a 
sufficiently  strong  presumption  of  guilt  to  warrant  a  conviction 
for  that  crime.  JJut  he  says  there  are  nearly  always  other  cir- 
cumstances and  evidence  attending  that  possession,  such  as  the 
character  of  the  party,  the  explanation  given  or  refused,  or  at- 
tempts at  concealment,  whicli  may  greatly  increase  or  diminish 
the  presunqition  raised  by  the  possession. 

AVe  think  the  charge  of  the  court  gave  too  much  imiiortanoo 
to  the  simple  fact  of  the  possession  of  stolen  goods  five  months 
after  the  same  had  been  stolen,  and  that,  in  doing  so,  it  was  cal- 
culated to  mislead  the  jury.  The  latter  part  of  this  clause  of 
the  charge  is  still  more  (jbjectionaltle  than  the  former.  The 
jury  are  told  that  the  law  presumes  the  ])ossessor  of  stolen  prop- 
ertv,  reeontlv  after  the  theft,  to  be  the  thief;  and  he  must  rebut 
that  presumption  by  proof,  such  as  having  purchased  the  ]n'op- 
rety  in  a  pul)Iic  manner.  "We  can  hardly  comprehend  the  force 
c>f  this  portion  of  the  charge,  nor  can  we  understand  why  a  pur- 
cli.'ise  made  privately,  if  innocently  made  in  good  faith,  would 
iu)t  protect  tiie  possessor  as  fully  as  though  the  purchase  had 
been  made  i)ublicly. 

There  is  much  conflict  in  the  testimony  in  this  case,  and  there- 
fore it  becomes  highly  important  that  the  jury  should  have  the 
law  plainly  and  correctly  given  them,  as  a  guide  for  their  verdict. 

The  judgment  of  the  district  court  is  therefore  reversed,  and 

the  cause  renumded. 

Bevcn  .'.I  and  remanded. 


\ 


f.V 


1 

i 
i 

1 

1 

436  AMERICAN  CRIMINAL  REPORTS. 

Peoi'le  vs.  Noregea. 

(48  Ciil.,  12:3.) 

Larceny  :    Effid  of  recent  possession . 

On  a  trial  for  larceny,  the  only  ovidunco  wa.s,  that  rospondont  wius  found  in  pos- 
session of  the  stolen  hoive  a  few  hours  aftor  it  was  stolen.  Jhid,  thai  tlio 
evidence  wa-s  not  sufficient  to  justify  a  conviction. 

On  a  trial  for  larceny,  evidence  of  the  recent  possession  of  stolen  propoily  is  not 
of  itself  sufficient  to  justify  a  conviction. 

Wallace  and  McKikstuv,  JJ.,  not  expressing  an  opinion. 

lliioDKS,  J.  The  (lefeiulaiit  was  convicted  of  grand  larceny, 
for  the  stealing  of  a  horse.  The  only  evidence  of  defendant's 
guilt  was,  that  the  stolen  horse  was  found  in  his  possession  a  few 
hours  after  it  was  taken.  Ptojde  v.  Chavihers,  IS  Cal.,  3S2;  and 
I'cojde  V.  Ah  Ki,  20  id.,  ITS,  hold  that  the  possession  of  stolen 
property  is  a  circumstance  to  he  considered  by  the  jury,  but  it  is 
not,  of  itself,  sutHcient  to  warrant  a  conviction.  It  is  said  by 
Greenleaf  (o  Greenl.  Ev.,  sec.  31):  "  It  will  be  necessary  for  the 
prosecution  to  >idd  the  ])roof  of  t)ther  circumstances  indicative  of 
guilt,  in  or -^'r  to  render  the  naked  ])ossession  of  a  thing  availa- 
ble towards  a  conviction." 

The  evidence  discloses  no  circumstances  of  that  character.  Tlie 
ridiuir  of  the  horse  several  miles  bevt>nd  tlie  point  where  he  was 
lirst  seen  in  possession  of  it  is  only  his  continued  possession  of 
it,  and  is  not  a  further  circumstance  indicative  of  guilt.  Tlie 
leaving  of  the  saddle  with  the  innkeeper  does  not  tend  to  i)rov(; 
a  larceny  of  the  horse. 

There  nuiy  be  an  abundance  of  authority  to  sustain  the  ]toiut 
of  the  attorney  general,  that  the  court  erred  in  excluding  e\  idenco 
as  to  the  defendant's  confession,  after  the  preliminary  evidence 
as  to  its  having  been  voluntary;  but  the  jioint  does  not  arise  iu 
the  defendant's  apj)eal. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 

Hem  ittltuvfoith  initli . 

Neither  Mr.  Chief  Justice  AVjVllace  nor  Mr.  Justice  McKins- 
TKY  expressed  an  opinion. 


If! 


GALLOWAY  v.  STATE. 


437 


'  ■■■  ^ml 


larct'ii}-, 

i>a  a  fow 
3S2;  ami 
:>f  i>tult'll 
but  it  is 
said  liy 
'  for  the 
L'utivo  (»!: 
L,'  availa- 


Gali.oway  vs.  State. 

(41  Tex.,  289.) 

Larceny:    Evidence. 

Pofsession  of  a  stolon  pipe  witliin  a  wook  or  ten  days  after  it  was  stolen,  in 
connection  witli  the  other  circunidtanee.s  in  this  case,  was  held  insufficient  to 
warrant  a  verdict  of  guilty. 

TnK  defendant  was  convicted  at  May  term,  1873,  for  theft 
from  a  house  of  a  pipe  of  tlie  vahie  of  two  dollars;  the  punish- 
ment fixed  at  two  years  in  the  penitentiary. 

The  ])rosecution  i)roved  by  A.  D.  Stroud,  that  within  twelve 
months  next  1>efore  the  indictment,  he  lost  his  pipe;  had  laid  it 
on  the  counter  in  his  storehouse  in  liusk  county;  that  about  half 
an  hour  afterwards,  he  looked  for  the  pipe,  but  could  not  find  it; 
spoke  of  losing  it  to  several  persons  at  the  time;  several  persons 
were  in  the  store  trading,  passing  in  and  out  of  the  house.  Wit- 
ness did  not  see  the  defendant  in  or  about  the  store  on  the  day 
the  pipe  was  stolen  or  lost;  the  pipe  was  taken  without  his 
knowledge  or  consent;  was  worth  two  dollars;  he  never  saw  it 
afterwards  until  it  was  brought  to  him  by  J.  A.  Poe,  a  week  or 
ten  days  after  the  time  he  lost  the  pipe,  when  Poe  brought  it  to 
witness. 

l*oe  testified  that  defendant  came  into  witness'  family  grocery 
a  few  days  (less  than  a  week)  after  he  had  heard  Stroud  had  lost 
his  ])ipe;  that  defendant  was  smoking  a  pi])e  he  thought  was 
Stroud's;  witness  olFered  to  bu}''  it;  defendant  said  he  would  sell 
it;  witness  gave  him  a  dollar's  worth  of  cigars  for  it;  defendant 
was  smoking  the  pipe  openly  in  the  town  of  Henderson,  walking 
up  and  down  the  streets;  tiiat  Stroud,  who  had  lost  the  pipe, 
was  then  doing  business  in  the  town  of  Henderson;  defendant  told 
witness  first  he  "  had  found  the  pipe,"  but  after  talking  awhile 
said  he  had  bought  it  of  a  negro,  whose  name  he  did  not  know;" 
defendant  at  the  time  was  drunk;  witness  went  to  Stroud  and  gave 
him  the  ])ipe,  and  told  him  of  whom  he  got  it  on  the  same  day 
he  got  it  from  defendant. 

No  counsel  for  appellant. 

Broion,  for  the  state. 

MoouE,  A.  J.  The  place  and  manner  of  the  alleged  theft;  the 
character  and  value  of  the  missing  property  supposed  to  be  sto- 


',"<!.  ?-  3| 


438 


AMERICAN  CRIMINAL  REPORTS. 


len;  the  facility  witli  which  it  ma}-  have  passed  from  one  person 
to  another  without  occasioninpj  sufficient  observation  to  enable 
ajipellant  to  prove  or  even  remember  the  name  of  the  jierson 
from  wliom  he  may  have  gotten  it;  the  sli<i;lit  value  attached  to 
it;  the  open  manner  in  which  he  used  and  exhibited  it  in  the  im- 
mediate vicinity  of  the  jdace  where  it  was  said  to  be  stolen;  the 
length  of  time  M-hich  had  elapsed  after  the  pipe  was  missing 
until  it  was  found  in  his  possession,  with  his  statement  when 
asked  how  and  where  he  got  it,  that  he  bought  it  from  a  negro, 
whose  name  he  did  not  now  remendjer,  if  not  sufficient  to  rebut 
all  presumption  of  guilt  arising  from  the  bare  proof  of  posses- 
sion of  the  stolen  property,  warrants  at  least  such  a  well  founded 
doubt  of  appellant's  guilt,  that  the  court  below  should  have 
granted  a  new  trial. 

The  judgment  is  reversed  and  the  case  remanded. 

lieversed  and  remanded. 


[  f.    ,u 


RlCGINA   VS.  StAKR. 

(40  U.  C.  Q.  B.  Rop.  2G8.) 

I 

Larceny  —  Recent  possession  —  Evklcncc. 

On  iinlictinont  for  stealing  cooper's  tools  on  the  5th  of  November,  1.S74,  it  up- 
pearutl  that  the  prisoner  was  not  arrested  for  nearly  two  yi.'ars  afterwards. 
During  that  time  —  it  was  not  Iviiown  precisely  when  —  he  was  proved  to 
have  sold  several  of  the  tools  at  much  less  than  thi.'ir  value,  n'presentiii{,'tliat 
he  wa.s  a  cooper  by  trade,  and  was  going  to  (juit  it,  which  wa.s  proved  to  In; 
untrue.  It  was  proved  also  that  he  was  in  the  shop  from  which  tiie  tools 
wei'e  stolen  the  night  before  they  were  taken,  and  frecpiently ;  and  that  wluu 
arrestt;d,  he  offered  the  prosecutor  .?oo  to  settle  and  buy  n(;w  tools,  and  nl- 
fered  the  constable  .§100  if  he  could  get  clear.  Jlchl,  that  though  the  inciv 
fact  of  the  possession  by  the  prisoner,  after  such  a  lapse  of  time,  miglit  not 
alone  suffice,  yet  that  ad  the  facts  taken  together  were  enough  to  sui>port  a 
conviction  for  larceny. 

Case  reserved  from  the  County  Judge,  Criminal  Court,  of 
JIvron,  by  Isaac  Toms,  Co.  J. 

The  facts  were  as  follows:  The  indictment  was  for  larceny 
and  receiving.     The  conviction  was  for  larceny. 

There  were  in  fact  two  questions  for  determination: 

1.  "Whether  the  admissions  or  oft'ers  of  the  prisoner  to  settle 
were  admissible. 


REGINA  V.  STIVER. 


439 


person 
t'liiiMe 
]>ersoii 
celled  to 
tlie  ill). 
[It'll;  tlio 
inissiiiir 
it  wlifU 

negro, 

to  rebut 

l)os.se-:- 

"uiiiKled 

Id  have 


2.  'Whether,  if  admissible,  there  was  on  the  whole  cose  evi- 
dence  to  go  to  a  jury,  if  there  were  one,  in  supi^ort  of  a  chargo 
of  larceny. 

The  things  stolen  were  cooper's  tools.     They  consisted  of  two 
adzes,  chaniper  knife,  a  leveler,  hand  axe,  and  otlier  similar  ar- 
ticles.   They  were  stolen  either  on  the  night  of  the  5th  Novem- 
ber or  morning  of  the  Gth  November,  187i,  out  of  a  cooper's  shop 
in  Scaforth.    The  shop  was  usually  locked  at  night.     During  the 
night  of  5th  November,  1S74,  it  was  broken  into.    A  pane  of 
glass  had  been  taken  out  of  the  back  window,  which  allowed  a 
person  to  withdraw  tlie  bolt  and  enter  the  shop.     The  priaoner 
before  and  at  the  time  of  the  larceny  was  at  Seaforth.     lie  was  in 
the  shop  the  night  before  the  taking  of  the  tools,  and  had  used  one 
of  them.     He  was  frc(piently  in  the  shop,  and  the  evidence  did  not 
point  to  any  other  than  the  prisoner  as  the  thief.   The  prisoner  was 
not  arrested  for  the  stealing  till  nearly  two  years  afterwards.   Dur- 
ing that  time  he  was  proved,  from  time  to  time,  to  have  sold  several 
.)l:  the  tools  at  prices  much  below  their  value.     lie  represented 
that  he  was  a  cooper  by  trade;  that  he  had  been  working  at  the 
cooperage  trade  for  some  time  and  was  going  to  quit  it.     This 
statement  was  proved  devoid  of  truth.    After  his  arrest  he  stated 
that  he  had  purchased  the  tools  from  a  party  in  Brussels;  that  he 
purchased  them  in  the  presence  of  a  woman  now  dead;  and  that 
the  purchase  was  unide  in  a  i)articular  tavern  named.   His  brother 
proved  the  purchase  of  a  tool  or  tools  by  tl'e  prisoner  of  a  man 
under  the  influence  of  drink  in  a  tavern  at  Brussels,  but  there 
was  no  satisfactory  evidence  to  show  that  the  ])urchase  was  of 
any  of  the  tools  in  question.     This  was  in  January  or  February 
last.     The  man   from  whom   the  tools  were  ])urchased  was  de- 
scribed by  a  brother  of  the  tavern  keeper  as  "a  liard  looking 


case. 


The  prisoner  after  his  arrest  otFored  the  prosecutor  8:35  to  set- 
tle, and  to  i)urchase  a  new  kit  of  tools.  He  told  au'  Mior  witness 
he  would  give  -SlOO  if  he  could  get  clear  of  the  tools.  He  was 
arrested  on  the  ^Ist  of  September  last.  On  that  day  he  said  to 
the  prosecutor,  in  the  presence  of  the  constalde  who  made  the 
arrest,  that  he  had  ])urchased  the  tools  in  a  tavern  at  lirussels. 
The  constable  i)roved  the  otl'er  to  him  of  §100  by  the  prisoner, 
when  the  latter  was  being  taken  to  the  lockup.  There  was  no 
evidence  of  any  inducement  ollered  to  the  prisoner,  either  by  the 


4-10 


AMERICAN  CRIMINAL  REPORTS. 


prosecutor  or  by  the  constable.  But  the  prosecutor  told  the  con- 
stable he  was  willing  to  let  the  prisoner  go,  if  the  constablo 
would. 

December  G,  1870,  J.  K.  Iierr,  Q.  C,  appeared  for  the  crown, 
lie  referred  to  Archb.  Cr.  PI.,  ISth  ed.,  251;  Uo?c.  Cv.  Kv.,  8th 
ed.,  50;  Jux  v.  Adams,  3  C.  cV:  P.,  COO;  Hex  v.  PaHr'aJije,  7  id., 
551. 

lie  stated  that  the  prisoner  desired  to  cite  Hex  v.  CroMjhurHt, 
1  C.  ifc  K.,  370;  lieijum  v.  Wihon,  7  Cox,  310;  lieglna  r.  Wil. 
son,  L>G  L.  T.  M.  C.  45;  l!e<jlna  v.  Taylor,  8  C.  &  i\,  73:'.. 


u,..,  II 


\\\k. 


December  29,  1870.  IIakkison,  C.  J.  There  is  no  ground 
for  excluding  the  offers  made  to  the  prosecutor  or  the  constable. 
It  does  not  appear  that  there  was  any  inducement  whatever  held 
out  by  either  of  them.  It  would  be  a  waste  of  time  to  reier  to 
the  authorities  on  the  ])oint:     Archb.  Crim.  PI.,  IStli  ed.,  3S1>. 

But  tlio  important  fpiestion  is,  whether,  assuming  this  evidence 
to  have  been  rightly  received,  there  was  evidence  against  the 
prisoner  of  larceny. 

We  regret  he  was  not  represented  by  counsel  at  the  argument 
before  us.     But  the  argument,  if  any,  on  his  behalf  would  be: 

1.  That  there  is  nothing  against  him  but  the  factof  the  posses- 
sion of  the  things  stolen. 

2.  That  the  possession  was  not  a  recent  one. 

3.  That  he  gave  a  satisfactory  account  as  to  his  ])ossession. 

4.  That  even  if  a  recent  possession,  and  no  satisfactory  ac- 
count given,  such  possession  is  not  evidence  of  larceny  but  of 
receiving. 

Becent  jwssession  of  stolen  property  is  evidence  either  that 
the  person  in  posses  -'an  stole  the  i)roperty,  or  that  he  received 
it,  knowing  it  to  have  been  stolen,  according  to  the  other  circum- 
stance of  the  case,  lief/ina  v.  Denslei/,  (I  C  ik  P.,3l»!>;  Jiftjuia 
V.  Stnith,  1  Dears.,  494;  lieijlna  v.  Byrne,  L.  li.,  4  Ir.  (J.  L.,  GS; 
lieghut  V.  McMa/ion,  13  Cox,  275. 

If  no  other  person  be  involved  in  the  transaction  forming  the 
subject  of  inquiry,  and  the  whole  of  the  case  against  the  j»risoner 
is,  that  he  was  found  in  possession  of  the  stolen  property,  the 
evidence  would  no  doubt  point  to  a  case  of  stealing  rather  than 
receiving;  but  in  every  case,  except  indeed  where  the  possession 
is  so  recent  that  it  is  impossible  for  any  one  else  to  have  com- 


REG  IN  A  r.  STAKR. 


Ul 


mitted  the  theft,  it  hecomes  a  mere  question  for  the  jury,  wheth- 
er the  person  found  in  possession  of  the  stolen  property  stole  it 
himself  or  receivetl  it  from  some  one  else.  If  there  is  no  other 
evidence,  the  jury  will  prol)ahly  consider,  with  reason,  that  the 
prisoner  stole  the  property;  but  if  there  is  other  evidence  which 
is  consistent  either  with  his  having  stolen  the  property  or  with 
Ills  having  received  it  from  some  one  else,  it  will  be  for  the  jury 
to  say  which  appears  to  them  the  more  ]irobable  solution.  Jie- 
(jhia  V.  Lontjineail,  1  Leigh  &  C,  127,  437,  43J),  441. 

The  rule  is,  that  if  stolen  property  be  found  recently  after  its 
loss  in  the  ])ossession  of  a  person,  he  must  give  aii  account  of 
the  manner  in  which  he  became  possessed  of  it — otherwise  the 
])resuniption  attaches  that  he  is  the  thief.  Per  Bayley,  J.,  in 
Hex  V. ,  2  C.  &  P.,  459. 

If  the  person  into  whoso  possession  the  stolen  property  is 
traced,  gives  a  reasonable  account  how  he  came  by  it,  as  by  tell- 
ing the  name  of  the  person  from  whom  he  received  it,  it  is  in- 
cumbent on  the  prosecutor  to  show  that  account  is  false;  but  if 
the  account  given  l)y  the  jn'isoner  be  unreasonable  or  iniprobable 
on  the  face  of  it,  the  onus  of  proving  its  truth  lies  on  him. 
Per  Ai.i)/!;soN,  P.,  in  lieglna  v.  Croivltiirst,  1  C.  &  K.,  370. 

"  Suppose,  for  instance,  a  person  were  to  charge  me  with  steal- 
ing a  watch,  and  I  were  to  say,  I  bought  it  from  a  particular 
tradesman,  whom  I  name;  that  is  frhaa  faele  a  reasonable  ac- 
count; and  I  ought  not  to  be  convicted  of  felony,  iiidess  it  is 
shown  that  account  is  a  false  one."     Id. 

The  decision  of  Ai.nioiisoN,  P.,  in  lieijlna  v.  C I'oiohurst,  1  C. 
k  Iv.,  370,  was  followed  by  Lord  Dknman,  in  lle<jlna  v.  Smith, 
2  id.,  207. 

Put  it  is  not  to  be  understood  from  either  of  these  cases  that 
it  is  incumbent  on  the  Crown,  relying  solely  on  a  recent  posses- 
sion of  goods,  in  every  case  to  call  as  witnesses  the  persons  to 
whom  the  prisoner  referred,  to  account  for  his  possession.  Re- 
glna  v.  Wllso7i,  7  Cox,  310. 

If  in  this  case  there  could  be  said  to  be  recent  possession,  wo 
could  not  hold  the  prisoner's  account  of  how  he  became  pos- 
sessed of  the  property  satisfactory,  and  it  does  not  appear  to  be 
much,  if  any,  improved  by  the  testimony  of  the  witnesses  called 
on  his  behalf  to  substantiate  the  account. 

The  question  of  what  is  or  is  not  to  be  held  a  recent  posses- 


'3''? 


■■\Vn: 


I  ? 


M 


i 


442 


AMERICAN  CRIMINAL  RErORTS. 


u. 


I'll* 


'n 


Bion  is  to  be  considered  with  reference  to  tlio  nature  of  the  arti- 
cles  stolen.     Jie.ii  v.  l*arti''i<l(je,  7  C.  &  1*.,  551. 

AVhere  two  ends  of  woolen  cloth,  in  an  unfinished  state,  con- 
sisting  of  about  twenty  yards  each,  were  lost,  and  were  in  tlio 
possession  of  the  prisoner  two  months  after  being  stolen,  and 
still  in  the  same  state,  it  was  held  that  this  was  a  jiussesslou  suf- 
ficiently recent  to  call  on  the  i)risoner  to  show  how  he  caniu  hy 
the  property.     Id. 

If  the  only  evidence  against  the  prisoner  be,  that  the  Btolen 
property  wa  found  in  his  possession  three  months  after  the  loss 
of  it,  the  juuge  may  direct  an  acrpiittal.  Hex  v.  Adams,  3  C.  & 
P.,  000.  And  if  it  appear  that  so  long  a  period  as  sixteen 
months  has  elapsed,  it  would  not  be  reasonable  to  ajiply  the  ])re- 
sumptlon  either  of  stealing  or  receiving,  to  the  prisoner.  li^e 
V. ,  2  C.  *fc  P.,  459.     '  • 

But  if  there  bo  evidenoo  of  something  more  than  tlie  mere 
fact  of  the  property  being  in  possession  of  the  prisoner  for  a 
time  which  cannot  be  held  to  be  recent,  the  case  ought  not  neces- 
6arily  to  be  withdrawn  from  the  consideration  of  the  jury. 
Hex  V.  Adams,  3  C.  &  P.  GOO. 

In  thift  case  there  was  not  only  the  fact  of  possession  (not 
shown  precisely  when  as  to  the  different  articles),  but  the  fact 
that  the  prisoner  was  in  the  shop  the  night  before  the  articles 
were  stolen;  the  fact  when  selling  them  he  represented  himself 
as  a  coo]ier  going  out  of  busiijess,  which  was  untrue;  the  fact 
that  the  articles  were  soM  by  him  greatly  below  their  value,  and 
the  fact  of  his  offers  to  the  prosecutor  and  the  coust...^le  with  a 
view  to  the  jn-evention  of  the  prosecution. 

While  any  one  of  these  facts,  standing  by  itself,  might  not 
be  strong  enough  to  raise  a  reasonal)le  pre5umj)tion  of  guilt,  the 
consideration  uf  all  of  them,  in  our  opinion,  could  have  no  other 
effect. 

All  the  questions  submitted  for  our  opinion  in  the  case  stated 
by  the  learned  judge  of  Huron,  must  be  answered  against  the 
prisoner. 

The  case  is  defective  in  omitting  to  state  whether  or  not  the 
prisoner  has  been  sentenced.  If  not  sentenced,  we  order  the 
learned  judge  to  pass  judgment  on  the  prisoner. 


MoRBisox,  and  Wilson,  JJ.,  concurred. 


Conviction  ajffinncd. 


STATE  V.  COLLINS. 


443 


11 


i  If 


Statk  vs.  C(»r,Lix9. 

(72  N.  C,  144.) 
Lakckxy:    Evhlvnce. 

In  a  propcciition  for  hiK'ony,  Ww  ovidonco  niu.tt  pivci.sL'ly  iJciitify  the  thing 
stolen.  It  is  not  sutticii'nt  to  show  tliiit  one  of  two  thin[]^i  equally  valuable 
wiia  stoli.-n. 

Eeadk,  J.  The  dcfenclant  is  churned  in  one  count  witli  steal- 
in<?"oiio  national  bank  note,  of  tlie  denomination  of  five  dol- 
lars, one  treasury  iKjte  of  the  denomination  of  live  dt)llars," 
It  is  nnoertain  wlietlier  the  cliari^^e  should  be  consstnied  to  be, 
that  he  stide  both  a  treasury  note  and  a  bank  note,  or  that  ho 
stole  one  or  the  other,  and  only  one.  It  would  ha\  e  been  ])roper 
to  charge  in  one  count,  the  stealing  of  a  bank  note  and  a  treas- 
ury r.ote,  or  to  charge  the  bank  note  in  one  count,  and  tho 
treasury  note  in  another  count.  We  sujuiose  from  what  appeared 
in  evidence,  that  the  indictment  was  put  in  this  rather  dubious 
furm,  to  meet  anticipated  dubious  evidence.  l>ut  this  camiot 
avail,  because  botjj  the  evidence  ainl  the  indictment  ought  to  bo 
spcciiic  and  cei-tain.  We  have  to  take  the  indictment  as  charg- 
ing the  stealing  of  both  a  baidv  note  and  a  treasury  note,  and 
that  is  sulKcient.  But  still  in  order  to  convict,  it  was  necessary 
to  jirovc,  not  the  stealing  of  one  or  the  other,  not  knowing  which, 
hut  sjK.'cilicully  which  one. 

And  the  witnesses  said,  "  that  thev  did  not  know  whether  tho 
])ill  was  one  issued  by  the  treasury  department,  or  by  some  ono 
of  the  national  baidcs;  but  it  was  a  bill  in  usual  circulation, 
iS'o  evidence  as  to  but  one  bill  being  stolen."  The  jury  returned 
a  verdict  of  "guilty."  lint  guilty  of  what?  They  could  not 
know  more  than  the  witnesses  knew,  and  the  witnesses  did  not 
know  what?  This  is  not  like  the  case  of  State  v.  WUlucias,  9 
Ired.,  140,  where  the  defendant  was  indicted  under  the  statute 
for  stealing  a  slave,  in  several  counts;  ono  that  tho  taking  and 
carrying  o^vay  was  by  "  violence,"  and  another  that  it  was  by 
seduction,  and  others  varying  tho  //uinncr  of  doing  the  thing. 
There  it  was  held  sufficient  if  the  jury  found  that  ho  did  it  in 
either  way.  But  this  is  like  the  case  of  liegbia  v.  Bond,  1 
Bennett  »fc  Heard's  Lead.  Crim.  Cases,  553,  where  the  defendant 
was  indicted  for  Btealing  coliij  but  of  what  particular  denomina- 


ti 


44i 


AMERICAN  CRIMINAL  REPORTS. 


tioii,  the  witness  did  not  know.  And  so  the  indictment  clmrn^es 
him  with  stealing  every  denomination  of  coin  nsed  in  Eiii;liiii(l. 
The  case  went  np  to  (^neen's  hencli  and  was  nnicli  discussed,  and 
all  tlie  judges,  hut  one,  concurred  that  the  tlefendant  could  not 
be  convicted.  In  tluvt  case  it  was  said  that  the  ditliculty  hud 
arisen  in  cases  of  embezzlement,  and  a  statute  had  been  ])assed 
to  remedy  it;  but  the  statute  did  not  embrace  larceny.  It  was 
probably  in  conse(jnence  of  that  decision,  that  a  statute  was 
passed,  14  and  15  Vic,  ch.  100,  sec.  18.  "  In  every  indictment 
in  which  it  shall  bo  necessary  to  nnike  any  averment  as  to  any 
money,  or  any  note  of  the  IJank  of  England,  or  of  any  other 
bank,  it  shall  be  sufficient  to  describe  such  money  or  bank  note, 
simply  as  money,  without  specifying  any  particular  coin  or  bank 
note,  and  such  allegation,  as  far  as  regards  the  description  of  the 
l)roperty,  shall  be  sustained  by  proof  of  an}'  amount  of  coin,  or 
of  any  baidv  note,  although  the  particular  species  of  coin  (»f 
which  such  amount  was  composed,  or  the  particular  nature  of 
the  bank  note  shall  not  be  proved."  If  wc  liad  a  like  statute 
here,  it  may  be  that  it  would  facilitate  the  convicti<jn  of  oti'enders. 
Tliere  is  error. 
Per  Curiam:  Venire  de  novo. 


«»'  )f 


V  . 


'It 


State  vs.  Cautkr. 

(72  N.  C,  90.) 
liARCKNY:    Evidence. 

On  a  trial  for  larceny  of  money,  evidence  tJiat  the  prisoner,  after  the  larcen. , 
had  money,  in  no  way  identified  iw  ])art  of  tliat  stolen,  ii>  immaterial. 

Testimony  which  raises  a  mere  conjecture  oujjht  not  to  be  left  to  a  jurj*  as  cvi- 
denoe  of  a  fact  wliich  a  p.uiy  is  required  to  prove. 

Byncm,  J.  The  count  in  the  indictment  against  the  prisoner 
relied  upon  by  the  state  is  that  which  charges  him  as  the  re- 
ceiver of  stolen  jiroperty,  knowing  it  to  have  been  stolen,  to  wit: 
A  specified  number  of  United  States  notes  of  five  dollars  each, 
of  one  dollar  each  and  of  fifty  cents  each.  In  support  of  the 
charge,  among  other  things,  the  state  oftered  to  jirove  by  one 
William  Bailey  that  "  a  short  time  after  the  larceny  the  prisoner 
came  to  his  store  and  purchased  seversil  articles,  and  he  saw  sev- 
eral bills  of  money  in  liis  pocketbook  when  the  prisoner  went  to 
to  pay  him,  but  did  not  notice  the  denomination  of  them."    This 


STATE  r.  CARTER. 


445 


testimony  was  objected  to  by  the  prisoner,  but  admitted  by  tlio 
court.     Was  tliis  error? 

Tiie  rule  of  evidence,  as  to  its  admissibility,  is,  that  "  testi- 
mony which  raises  a  mere  conjecture  ought  not  to  bo  left  to  a 
jury,  as  evidence  of  a  fact  which  a  ]iarty  is  required  to  prove. 
Mothers  V.  MothcinH^  3  Jones,  132;  Cohh  v.  Fofjlciiyin,  1  Ired., 
440;  State  v.  A/Zen,  3  Jones,  2.57.  The  state  here  was  required 
to  prove  that  the  prisoner  received  the  stolen  "  treasury  notes" 
described  in  the  indictment.  The  evidence  admitted  to  estab- 
lish  this  fact  was,  that  the  prisoner  was  seen  in  a  store,  a  short 
time  after  the  larceny,  whether  a  day,  or  a  week,  or  a  month  after, 
is  not  stated;  that  he  j)urchased  several  articles  and  hiul  some 
"bills  of  nione}',"  neither  the  amount  nor  denomination  of  which 
was  seen.  Was  the  sum  of  money  seen  with  the  prisoner  unus- 
ual in  amount?  Was  any  of  it  of  the  denomination  of  that 
which  was  stolen?  Was  there  any  incident  connected  with  the 
store  transaction  calculated  to  raise  even  a  suspicion  against  him? 

A  man  is  seen  in  a  store,  having  some  money  and  making 
some,  we  are  to  assume,  ordinary  purchases,  in  the  usual  course 
of  business.  The  circumstance  of  his  having  some  money  was 
one  common  to  all  persons  who  use  a  circulating  medium,  and 
was  unaccompanied  l)y  a  single  mark  or  incident  which  distin- 
guished his  possession,  from  that  of  others,  of  a  similar  sum  of 
money. 

If  the  prisoner  had  been  indicted  for  stealing  wearing  apj^arel, 
it  would  have  been  just  as  competent  for  tlie  state  to  prove  that 
a  short  time  after  the  larceny  the  prisoner  was  seen  dressed  in  a 
suit  of  clothes.  The  evidence  admitted  not  onlv  does  not  tend 
to  establish  the  fact  to  be  proved,  but  does  not  afford  a  rational 
ground  of  conjecture  6f  his  guilt.  AVhat  effect  this  testimony 
had  upon  the  jury,  if  any,  we  have  no  means  of  knowing.  But 
as  it  may  have  misled  them  to  the  prejndice  of  the  prisoner,  and 
was  improperly  admitted,  there  must  be  a  ven'we  de  novo.  It 
is  unnecessary  to,  and  we  do  not  decide  the  other  exceptions; 
l)ut  Starkie  on  Evidence,  335,  and  Pollok  v.  Pollol-,  (VS  X.  C, 
40,  seem  to  hold  that  where  the  contents  of  a  writing  come  col- 
laterally in  question  only,  and  are  not  material  to  the  issue,  such 
writing  need  not  be  produced,  but  parol  evidence  of  its  contents 
may  be  given. 

Pkr  Curiam:  Venire  de  novo. 


¥m 


i  1 1 


446 


AMERICAN  CRIMINAL  REPORTS. 


nm' 


m  i  wu 

i  '  ^B 

i  '  uM 

n    mt 

1  .  ■  •( 

IST '    Chi^l 

Cautku  vif.  Statk. 

(5:Kia.,  :{2fl.) 

Lakceny  uy  Baii.kk:    rUmlhuj — Variauec. 

An  indictinoiit  for  larceny  l>y  a  liiiilt'e  must  Btiito  the  biiilint'iit  uwiirutcly,  aiul 
ii'  it  (Iocs  not,  tlioro  will  be  a  fatal  varimico. 

Anthony  Cjirter  was  indietoil  for  the  offense  of  liii'cciiy  .iftor 
a  trust  tlelt'i^iited,  in  this,  tliat  lie  "wiis  intrusted  by  one  .John 
Mongin  with  four  hundred  and  eighty  melons  of  the  vahie  of  tun 
cents  each,  the  property  of  the  said  John  ]\[ungin,  for  tlu;  jtur- 
poso  of  applying  the  same  to  tlio  sole  use  and  behoof  of  the  said 
John  !Mongin."  And  "after  having  heen  intrusted  as  aforesaid, 
failed  to  apply  the  article  aforesaid  as  directed,  hut  wrongfully, 
feloniously,  fraudulently,  and  without  the  consent  (»f  the  owiut 
thereof,  appropriated  the  sajue  to  his  own  use,  without  paying 
to  the  owner  thereof  the  full  value  or  market  ]>rice  thereof.'' 

The  evidence  for  the  state  disclosed  that  the  melons  were  de- 
livered hy  ]\[ongin  to  the  defendant  to  be  sold  for  him,  the  jiro- 
ceeds  to  be  paid  to  ]\rongin,  less  what  the  defendant  charged  for 
his  services;  that  the  melons  were  of  the  value  charged,  and  that 
the  defendant  pait^  but  one  dollar  to  ]\Iongin. 

The  evidence  for  the  defendant  is  omitted  as  unnecessary  to 
an  understanding  of  the  decision.  The  jury  found  a  verdict  of 
guilty.  The  defendant  moved  for  a  new  trial  because  the  verdict 
was  contrary  to  the  law  and  the  testimony.  The  motion  was 
overruled  and  defendant  excej)ted. 

Trii'pk,  J.  The  statute  makes  the  fraudulent  conversion  by  a 
bailee  of  many  kinds  of  property  a  criminal  act,  to  wit:  money, 
notes,  bonds,  cotton,  corn,  horses,  mules,  etc.  If  the  indictment 
charged  that  the  defendant  was  intrusted  with  money,  or  a  horse, 
which  he  fraudulently  converted,  it  could  not  be  sustained  by 
proof  that  a  bond,  or  cotton,  had  been  so  intrusted  and  converted. 
So  the  same  statute,  Code,  sec.  4424,  prescribes  that  when  such 
things  or  articles  have  been  intrusted  to  a  person  for  divers  dif- 
ferent purposes,  to  be  used  by  him  in  various  specified  ways 
therein  defined,  and  the  bailee  shall  fraudulently  convert  thein 
to  his  own  use,  or  otherwise  dispose  of  them,  he  shall,  on  con- 
viction, be  punished. 


w 


MAUMONT  1-.  STATi:. 


417 


-'}' 


■iitfly,  aiul 


It  18  as  mncli  necessary  that  the  character  of  the  l)iiihiieiit,  the 
purpose  fur  which  the  thiiii,'  U  intrusted,  shall  he  set  forth  in  the 
indictment,  as  it  is  pr(>j)erly  to  descrilte  the  thin<^  or  ni't'ida 
itself.  In  lK)th  cases  the  rnlo  is  fonnded  on  the  ri^ht  of  a  party 
to  liave  notice  of  what  it  is  j)roposed  to  convict  him,  AV"e  do 
not  suppose  that  any  indictment  under  this  statute  evef  failed  to 
deline  hoth,  to  wit:  the  article  de])osited,  and  the  nature  or  object 
of  the  bailment.  Kacli  of  them  is  set  forth  in  the  one  uiuler  con- 
sideration. The  bailment  therein  defined  is,  that  the  meloi'j 
were  intrusted  by  the  owi:cr  with  the  defendant,  *"  for  the  pur- 
pose of  ai)plying  the  same  to  tlie  solo  use  and  bcneiit  of  the  said 
owner."  The  proof  was,  that  they  were  delivered  to  the  defend- 
ant for  the  purpose  of  selling  the  same,  and  after  the  defendant 
was  satisfied  out  of  the  proceeds  of  sale  for  his  services,  the  sur- 
plus was  to  be  j)aid  to  the  owner.  When  the  bailee  is  charged 
with  a  trust  to  be  executed  in  a  special  mode,  distinctly  defined 
when  it  is  created,  and  is  to  be  brought  to  account  for  an  alleged 
breach  thereof,  either  civilly  or  criminally,  he  should  be  notified 
in  the  suit  or  crlniinal  accusation,  of  what  trud  it  is  claimed  he 
has  been  gnilty  of  violating.  Wo  think  justice  and  reason  de- 
mand this,  and  that  it  is  but  preserving, a  vital  rule  that  obtains 

in  all  pleadings,  civil  or  criminal. 

Jxidijmcnt  reversed. 


Makmont  vs.  State. 
(48  Intl.,  21.) 


LiQuou  Skm.ino  :    Sale  of  liquor  by  club  to  members. 

In  a  prosecution  for  solliiiy  liquor  on  Sunday,  it  appeared  that  defendant  was 
an  ofticer  of  a  cluh  wliieli  met  on  Sundays  for  literary  and  social  puq)Oses, 
and  wliicli  was  also  a  nuitual  benefit  society,  and  tliat  no  persons  but  niem- 
l)eiN  wi'ri'  admitted  to  tlieir  meetinj^js;  that  lajjer  licer  was  purchased  with 
the  society's  moneys,  and  that  on  Sundays  the  members  who  desired  drank 
the  beer,  and  each  time  tliey  j,'(>t  a  f,dass,  paid  five  cents  into  tlie  treasury, 
and  that  the  defendant  hail  no  personal  interest  in  tiie  matter,  but  merely 
acted  as  an  otHcer  of  the  club:  JIilil,  tliat  tliis  Wius  a  sale  of  liquor  by  the 
club  to  its  members,  and  that  defendant  was  properly  convicted,  havuig 
been  tiie  a^^ent  who  made  the  sale. 

BrsKiuK,  C.  J.  The  appellant  was  indicted,  tried  and  con- 
victed, in  the  court  below,  for  selling  intoxicating  liquors  on 
Sunday,  and  permitting  them  to  be  drunk  upon  the  premises. 


'i< 


¥     r 


g.i« 


f'.'a 


1  -J 


'i   .i 


'<      ) 


1  fl 


448 


j\MEKICAN  CRIMIXAL  REPORTS. 


The  court  overruled  a  motion  for  a  new  trial,  and  rendered 
judgment  on  the  finding. 

The  appelliint  has  assigned  for  error  the  overruling  of  the 
motion  for  a  iiew  trial. 

It  is  contended  hy  conneel  for  ap])ellant,  that  the  finding  of 
the  court  was  not  sustained  by,  but  was  contrary  to  the  evidence. 

The  ease  was  tried  in  the  court  below,  solely  and  exclusively 
upon  an  agreed  statement  of  facts,  which  was  as  follows: 

"  1.  At  and  for  a  long  time  previous  to  the  day  named  in  the 
indictment,  the  defendant  was  a  member  and  the  treasurer  of  an 
association  of  German  citizens  of  the  city  of  Indianapolis,  in  the 
county  of  Marion,  in  the  state  of  Indiana,  consisting  of  about 
forty  persons,  united  together  for  sociable  and  relief  purposes, 
and'called  "The  Modock  Club." 

'*2.  Each  person  becoming  a  member  of  said  sociefy  paid 
into  the  treasury  the  sum  of  fifty  cents,  and  thereafter  a  nn-  lily 
assessment  of  ten  cents,  to  form  the  basis  of  a  fund  for  ])aynient 
of  e.\i)enses  and  reliefs  of  said  society;  and  the  said  society  Mas 
and  is  regularly  oi'ganized,  and  has  a  president,  vice-president, 
secretary  and  treasurer. 

"  3.  Said  society  meets  regularly  on  the  first  day  of  the  week, 
commoidy  called  Sunday,  and  the  meukbers  pass  the  time  of 
meeting  in  hearing  speecJies,  and  discussions  on  divers  subjects, 
moral,  ])olitical,  and  historical,  reading  the  newspapers  sub- 
scribed for  by  the  associatioi\,  conversing,  sniol.ing,  taking  a 
glass  of  lager  beer,  und  diinking  same,  when  they  fuel  disposed 
thei'ctt). 

*'  4.  The  meetings  of  said  associ.ation  are  held  in  ^larmont's 
Hall,  a  building  on  the  southwest  corner  of  Illinois  and  CTCorgiii 
streets,  in  the  city  of  Indianapolis,  in  the  said  county  of  Clarion, 
in  said  state  of  Indiana,  and  no  persons  are  admitted  to  said 
meetings  except  its  members,  and  each  member  is  furnished 
with  a  pass-key  by  which  he  can  enter  the  liall  on  the  days  of 
meeting. 

'•  5.  On  Saturday  of  each  week,  the  treasurer  of  said  associa- 
tion (who  is  the  defendant  in  this  indictment),  by  its  order, 
purchases  a  keg  of  Cincinnati  lager  beer,  Mhich,  if  drank  in  suf- 
ficient (juantities,  is  an  intoxicating  litjuor,  for  the  said  associa- 
tion, and  pays  for  it  out  of  the  society's  money,  the  purchase  and 
payment  thereof  l)eing  always  nuide  on  Saturday,  the  last  day  of 


jst't; 


MARMOXT  r.  STATE. 


449 


eacli  week;  and  the  said  keg  is  on  Satuvday  placed  in  said 
society's  hall. 

"  6.  At  the  meeting  on  the  first  day  of  the  week,  commonly 
called  Sunday,  when  a  member  of  said  association  desires  a  glass 
of  beer,  it  h  drawn  from  the  keg  ])urchasedfor  and  belonging  to 
said  association,  and  the  meml)er,  for  whom  it  is  dravvn  and  who 
gets  it,  delivers  to  the  treasnrer  live  cents,  which  is  placed  in  the 
trea:  try  of  the  society,  and  tlie  treasurer  gets  no  part  of  it,  and 
derives  no  gain  or  profit  whatever  from  tlie  same;  and  all  of  said 
beer  left  after  said  meeting  is  thrown  away. 

"  7.  The  said  money,  rocei\  ed  for  each  glass  of  beer  drawn  for 
and  nsed  by  n  member  of  said  association,  goes  into  the  society's 
treasury,  to  keep  u])  its  funds  for  payment  of  expenses,  procur- 
ing refreshments,  and  for  reliefs,  which  expenses  are  fuel,  rents 
of  liall,  news])apers,  the  beer  nsed,  and  the  donations  or  reliefs, 
payable  to  each  member  of  said  association  who,  from  sickness 
or  other  misliaps,  may  reqnire  assistance;  and  a  standing  com- 
mittee from  the  members  of  said  society  is  appointed  to  see  after 
arJ  ii:qu'rc  into  and  direct  the  ])ayment  of  necessary  reliefs  in 
Oil  sucli  cases. 

"  8.  TiiC  !Ufotings  of  said  association  were  and  arc  conducted 
in  an  orderly  manner;  and  it  was  not  the  intent  of  said  society, 
in  its  organization,  nor  is  it  the  intent  of  its  members  in  carrying 
it  on,  to  violate  the  provisions  of  any  law  of  tlie  st.iteoE  Indiana. 

"9.  On  the  day  named  in  the  indictment,  and  at  a  meeting  of 
said  society,  at  and  in  its  said  hall,  the  defoidant,  a  inember 
and  tlif  treasurer  of  said  society,  at  tlie  request  of  the  said  AVil- 
liam  Grasson,  named  in  the  indictment,  who  was  also  a  member 
of  said  society,  drew  a  glass  of  lager  beer  from  the  keg  purchased 
for  and  btlinging  t,:  sai>'  society  as  ai'oresaid,  and  handed  it  to 
said  (irasson,  who  drank  it  in  said  society's  hall,  and  said  Gras- 
son handed  to  said  defendant,  as  such  treasurer,  five  cents,  wliich 
defendant  immediately  put  into  the  treasury  of  the  society,  for 
its  use  and  ])urposes  aforesaid,  deriving  no  gain  therefrom. 

"  10.  If  said  act  of  drawing  and  handing  said  glass  of  beer  t<.> 
said  (Jras^on,  and  receiving  and  putting  said  live  cents  into  the 
treasury  of  said  society,  under  the  circumstances  afoivsaid,  con- 
stitute an  unlawful  sale  of  intoxicating  liquor,  for  the  purpose 
of  gain,  within  the  meaning  and  under  the  provisions  of  the  act 
of  the  general  assembly  of  the  state  of  Indiana,  of  February  27, 
Vol.  I.— 29 


•150 


AMERICAN  CRIMINAL  REPORTS. 


1, 

< 
■I 

I 

! 

1 

J 
1 
1 

ISTo,   the   tlefeiulant   in    guilty,   and  if  otherwise,   he  is   not 
ii-uiltv." 

It  is  very  earnestly  contended  by  counsel  for  appellant  tli;it. 
ujton  tlic  aij^reed  statement  of  facts,  thore  was  no  sale  dP  ' 
eating  liquor  within  the  nieaning  of  the  statute  upon  wliali  this 
jirosecutioii  is  based;  but  conceding  there  was  a  sale,  the  a])pol- 
lant  was  wrongly  convicted,  because  it  is  agreed  '•  that  it  was  not 
the  intent  of  said  society  in  its  organization,  nor  is  it  the  intent 
of  its  members  in  carrying  it  on,  to  violate  the  provisions  of  law 
01  the  state  of  Indiana." 

Counsel  for  a])pellant  say  "To  sustain  the  conviction  in  tli'- 
case,  the  defendant  must  have  sold  intoxicating  liquor  on  Siii- 
day,  the  first  day  of  the  week,  to  AVilliam  (Jrasson;  the  sale  must 
have  been  made  in  Marion  county,  Indiana;  it  must  have  been 
made  for  the  ])urj)ose  of  gain;  and  the  defendant  must  have  suf- 
fered ai  d  ])ermitted  the  liijuor  to  be  drank  in  the  building,  ur 
upon  the  premises  where  it  was  sold," 

It  is  conceded  that,  if  the  transaction  amonntod  to  a  sale  for 
gain,  the  appellant  was  rightly  convicted  uj)on  the  first  gr()ini(l 
stated.  To  constitute  a  sali;  there  must  be  a  passing  of  the  right 
or  title  to  property  for  money,  which  the  buyer  })ays,  or  prom- 
ises to  pay,  to  the  seller  for  the  thing  bougiit  or  svdd.  Nov. 
^[a.\.,  ell.  1:J;  Shep.  Touch.,  214;  WiUhunsion  v.  lirinj,  s  11  iw., 
•i:t.-i. 

Cnder  the  a rrangonicnt  ".^s  agreed  u]ion,  the  keg  of  beer  bi'- 
longed  to  the  >.i('iety.  The  appelhint  was  the  agent  of  the  soei- 
(.■ty,  and  if  he  sold  in  violation  of  law  he  is  liubk;  to  1h'  .'onvicti'd 
in  the  !~,.:iit'  niannei'  and  upon  the  same  princijde  as  a  liar-teiidir 
or  a  per,-on  wlio  holds  a  jici'init  under  the  statute  in  ijuestion  is 
liable,  who  j-('1I>  in  viojiitiou  of  the  statute.  As  the  keg  oFlK'er 
when  purchased  belonged  to  the  society,  the  tjuestion  arises 
whether  the  .-ociety,  by  its  agent,  could  make  a  valid  sale  (^f  su'di 
beer  to  the  jicrsons  conijiosing  such  society.  ^Ve  know  of  no 
]irincii)U'  of  liiw  whicli  irijvents  it.  AVe  know  that  it  is  tlii' dai- 
ly habit  of  piirtiici's  to  sell  the  firm  ])ro])ei'ty  to  the  jum'soiis  c()in- 
jiosing  the  linn,  and  quitt;  frecpu'ntly  the  iiK-mbers  of  the  firm 
are  permitted  to  purchase  such  goods  or  articles  as  they  may 
need  at  cost. 

AVhen  a  firm  purchases  with  partnershi[)  funds,  or  u]ion  credit, 
a  sack  of  cofi'ec  or  a,  barrel  of  sugar,  the  coil'ee  or  sugar  belongs 


:MAR.M0XT  r.  STATE. 


451 


^1 


IS   not 


to  the  firm;  l)ut  wlien  a  ]i;u-t  of  cadi  i>  1-.ikoii  out  aiul  tnuK-f erred 
to  cacli  inoiuber  of  tlio  firm,  eitlier  f<jr  cash  or  uixjii  ercdil,  a 
\ali(l  tniiist'er  has  heeu  ettected  from  the  firm  to  tlie  iiidivi<liial 
iiicnilicrs.  So,  wliile  tlie  lieer  was  iii  tlic  kcj;,  it  was  the  C(jm- 
iiKHi  property  of  tlie  society,  hut  when  a  portion  was  witlidrawii 
irid  delivered  to  a  memher  uf  the  society,  u])on  creilit  or  for 
c;ish,  the  portion  sf>  withdrawn  ceased  to  holoni;;  to  the  society 
pjid  hccame  the  separate  property  of  the  memher  so  receiviiij^  it, 
ami  the  traiisaciion  invested  him  with  the  power  to  drink  itliim- 
belf,  to  li'l  e  it  away,  to  sell  it,  or  to  throw  it  away.  Jjut,  says 
the  learned  counsel  for  the  appellant,  there  was  no  gain  or  profit 
to  tl'.e  :n)]i('llant.  It  is  not  lecessarv  that  there  should  he  irain 
VI'  j>rolit  to  him.  It  is  sut'  ^ient  if  the  sale  or  transfer  inured  to 
the  henefit  of  hi.-  principal,  the  society.  It  is  agreed  that  eac^' 
memher,  upon  his  initiation,  jiaid  fifty  cents,  and  thereafter  a 
monthly  assessment  of  ten  cents  to  form  the  hasis  of  a  fund  for 
payment  of  expenses  and  reliefs  of  the  society;  and  that  the 
inoney  received  for  each  glass  of  heer  drawn  for  and  used  hy  a 
luenihi'r  of  said  association  goes  into  the  societj^'s  treasury,  to 
keej)  u\>  'Ar.  funds  for  payment  of  e\})enses,  jirocuring  refresh- 
ments, and  for  reliefs,  which  expenses  are  for  fuel,  rents  of  hall, 
i:ews]i;ipers,  the  heer  used,  and  the  donations  or  reliefs  payahle 
to  each  memher  of  said  association  who,  from  sickness  or  other 
mishap,  may  reipiire  assistance;  and  a  standing  committee  from 
the  memliers  of  said  society-  is  a])])ointed  to  see  after  and  iiKpiiro 
into  and  direct  the  payment  of  necessary  reliefs  in  all  such  cases, 
^\'e  are  not  informed  what  ])rofits  are  realized  from  the  sale  of 
each  ki'g  of  heer.  hut  it  must  he  considerahle,  or  the  jn'oceeds 
\\(»uld  iKtt  he  sntlicicnt  to  ]>ay  expenses  and  furnish  the  necessa- 
ry reliefs  to  tli(!  sick  aiul  unfortunate  meiiihers  of  the  society. 

I'ar-^iius  on  Tartnership  ^ays:  "  Any  partnershij)  would  jji-oha- 
hly  cMUxnt  that  a  partner  might  take  a  ]iart  of  their  guoils  on 
his  (iwii  a<'count,  and  would  charge  the  same  t(,>  him.  Ihit  with- 
out such  ci»ii>ent.  txiu'css  uy  implieil.  it  is  ipiite  clear  that  hecaii 
appropriate,  luithing  to  himself.  Every  partner  owns  the  whole 
partiicrship  iirojierty,  suhject  to  the  Cijual  •.iwnershi[)  of  every 
other  partner,  and  no  one  partner  can  male  his  own  ownersiiip 
of  any  ])art  ahscjlutc  and  relieve  it  from  the  incnnd)rance  of  tiie 
ownership  (if  theothers  without  their  consent."     Pars.  Part.,  108. 

So,  in  the  present  cse.     When  the  society  appointed  the  ap- 


452 


AMKRICAN  CHIJIIXAL  llEPORTS. 


ii 


!'     > 


,1!; 


•s 


i  1 


;;, 


it  '  . 


in  m 


pellant  its  a^fciit  fortlic  sale  of  Its  1>ec>r  to  the  mciiiltcis  of  tlic 
ussociatioii,  it  consented  tliat  each  member  mii^ht  hecome  thu 
owner  of  sudi  ])(>rtion  of  the  ])artner,sliii)  property  as  lie  niiirlit 
he  Avillinu;  to  ])ay  for,  aii<l  ap[>ropriate  it  to  his  in«livi(hial  use. 
If  tlie  transaction  set  out  iji  the  aj^reed  statement  of  facts  \>v  not 
an  evasion  and  violation  o?  the  law,  then  a  number  of  ]KMVniis 
may  do  that  lawfully  which  if  done  by  one  ])erson  would  be  un- 
lawful. It  would  be  a  repn^ach  to  the  law  ami  its  iulmiinstra- 
tion  if  a  combination  of  persons  could,  by  such  an  arrangemi'iit, 
evade  the  law  and  thwart  the  legislative  will. 

('ounsel  for  appellant  greatly  rely  upon  the  case  of  Cuiiiiiinn- 
'ti'cnltli  V.  Smiili,  M^'l  Mass.,  144.  In  that  case  the  facts  wvw. 
"  Several  ])ersons  formed  a  clul),  of  which  the  defendant  was  a 
mcMiiber;  they  advanced  a  certain  sum  <>f  money  each,  which 
was  put  into  a  common  fund;  the  defendant  was  chosen  agent  of 
the  clid),  and  under  instructions  of  the  club,  purchased  li(|U(irs 
and  refreshments  for  the  chd);  the  fund  was  taken  by  the  defend- 
ant and  invested  for  them,  and  a  certain  number  of  checKs.  of 
the  amount  of  live  cents  each,  were  delivered  to  each  iiiember  of 
the  club,  to  the  extent  of  the  money  advance<l  by  each;  tlie.-e 
checks  were  transferable  only  to  other  members  of  the  chib;  upmi 
presentation  of  the  checks  by  any  member  to  the  d(!fen<lant.  he 
delivered  to  that  member  liijuor  of  the  club  t<»  the  amount  of 
the  ch(ck  ])resented.  On  several  occasions  the  defendant  liiul 
<le]i\ere<l  li([Uor  to  the  witness,  as  such  member,  U|)(tn  checks; 
n|»on  distributing  the  litpior  in  the  manner  aforesaid,  it  w:i  ■  enl- 
culated  that  the  li(pior  would  so  far  overrun  the  amount  to  !iu 
delivered  upon  the  checks,  as  to  leave  in  undelivered  liipior  almut 
twenty  ])er  cent.  c»f  the  original  co.-t;  and  the  defendant  was  to 
liave  tliis  residue,  to  com])en^ate  him  for  his  services  as  agent, 
aiul  for  the  use  of  his  room  by  the  clul». 

"The  presiding  judge,  in  view  of  all  the  t'vidtMice,  ruled  iliat 
if  the  lirpior  in  the;  dei'<'ndant's  iiossessjon  was  bonglit  l>y  liim 
as  agent  of  the  club,  and  the  iicjuor  i-o  |inrchased  was  thai  oT  lie 
club,  th(!  members  advancing  the  money  to  |)urchase  the  Minie, 
and  if  checks  were  distributed  to  each  of  tlie  members  aceoriling 
to  the  amount  advanceil  by  each,  and  dei'i'udant  was  a  member 
of  the  club,  and  deli  veiled  to  each  mendier  u]ton  presentation  of 
eucli  checks,  from  time  to  time,  the  amount  of  li(jUor  represent- 
ed 1  ■  such  checks,  that  woulil  be  a  sale  by  the  defendant.'' 


m 


■:f  :^ ! 


H   >! 


MAILMOXT  r.  STATE. 


453 


Tlic  court,  in  speaking  of  the  abovo  rnliiig  of  the  court  below, 
Bays:  "One  of  the  rulings  of  the  learned  judge  of  the  superior 
court,  at  the  trial,  appears,  however,  to  have  been  erroneous. 
The  arrangement  described  in  the  bill  of  exceptions  for  the  for- 
mation of  a  club,  tlie  ])urchase  of  li(piorswith  their  joint  funds, 
antl  their  distribution  among  tlie  members  by  the  agency  of  the 
defendant,  may  have  been  a  mere  evasion  of  the  law.  AV^hether 
it  was  really  so,  however,  Avas  wholly  a  ducstion  of  fact,  to  bo 
p}X.ssed  upon  by  the  jury  under  ])roper  instructions.  The  court 
was  not  warranted  in  assuming,  as  a  matter  of  law,  that  it  was 
necessarily  an  evasion,  or  that,  as  a  matter  of  law,  the  facts 
stated,  to  use  the  language  of  the  ])residing  judge,  '  woidd  be  a 
sale.' 

"It  certainly  might  luippen,  and  not  unfre(|uently  has  hap- 
pened, that  a  number  of  persons  unite  in  importing  wines,  or 
otlier  liipiors,  from  a  foreign  country,  to  be  divided  between 
them  according  to  some  agreed  pro])ortion.  It  could  not  seri- 
ously be  contended  that  the  person  who  shouhl  receive  the  licpior 
so  imported,  at  his  place  of  business,  ami  make  or  suj)eriutend 
tlie  division  among  the  contributors  to  the  ])urchase  motiey,  is  a 
seller  of  intoxicating  liipiors,  or  that  they  buy  the  liipiors  of 
liim.  It  is  dillicult  to  sec  how  it  could  malce  any  diil'erence  that 
tlie  li(|Uors  !ire  of  various  kinds,  and  were  purchased  in  this 
country  instead  of  lacing  impcu'ted  from  al>road,  or  that  the  per- 
son who  is  to  make  thedistribntion  delivers  them  in  small  quan- 
tities, and  keeps  his  account  by  means  of  tickets,  or  checks.  If 
the  liipiors  really  Iielonged  to  the  members  of  the  club,  and  had 
Ix'i'ii  pivviously  purchased  by  them,  or  on  their  account,  of  some 
juTson  iither  than  the  defeiulant,  and  if  he  merely  kept  the 
I'lUors  for  them,  ami  to  be  divided  among  them  according  to  a 
]irevionsly  arranged  system,  these  facts  would  not  justify  the 
jury  in  iinding  that  he  kejtt  and  maintained  a  nuisance,  witliin 
the  meaning  of  the  statute  under  which  he  is  indicted.  There 
would  be  neither  selling  nor  keei»ing  for  sale.  On  the  other  hand, 
if  the  arrangement  were  mere  evasion,  and  the  substance  of  the 
transaction  were  a  lending  of  money  to  the  defendant  that  he 
might  buy  intoxieating  li(juurs  to  be  afterward  sold  and  charged 
to  the  association,  or  if  he  was  authorized  to  sell,  or  did  sell,  or 
keep  any  of  the  li(iuors  with  intent  to  sell,  to  any  persons  not 
members  of  the  club,  he  might  well  bo  convicted.    This,  how 


ioi 


AMEIIICAX  CUIMIXAL  KlU'OKTS. 


HI 


I  n 


ever,  wonM  1)C  a  qnostion  not  of  l;i\v  l*nt  of  fiict,  and  wijiild  full 
wholly  within  tlic  jirovinct'  of  tlie  jury/' 

The  only  point  actiially  decided  in  the  ahove  case  was,  tliiit 
the  (juestion  of  wliether  tlie  arrangement  amounted  to  a  sale  was  . 
for  the  jury,  and  not  for  tlic  court,  ajid  that  tlie  court,  in  assum- 
ing to  decide  the  question,  usnr[ied  tlie  ])rovince  of  the  jury; 
and  for  this  error  the  judgment  was  reversed.  In  that  case  tlic 
liquor  was  purchased  with  money  helonging  to  the  clul),  and  a 
certain  nuniher  of  cliecks,  of  the  amount  of  five  cents  cacli, 
were  delivered  to  each  meniher  of  the  eluh  to  the  extent  of  tlicj 
money  ailvanced  hy  each,  and  upon  the  ju'esentation  nf  -ncli 
checks  the  defendant  would  deliver  to  that  memlter  licpior  to  ;lio 
amount  of  the  check  presented.  In  that  ease,  tlie  defendant  re- 
ceived no  money.  Nor  was  tliere  an  accumulation  of  a  fund  fur 
the  payment  of  expenses  ajid  reliefs. 

The  illustration  given  by  tlie  court  of  the  im])Oi*tation  of  li(|U()r, 
and  its  division  according  to  an  agreed  jirojiortiou,  a;  ;ili('d  witli 
much  greater  force  to  that  tlinn  the  jtresent  case.  It  is  (juite 
ohvious  thiit  in  the  ciise  sup]iosetl.  tliere  would  ])e  no  sale;  hut 
the  case  supposed  is  quite  diilereut  from  the  one  now  in  judg- 
ment. The  present  case  was  tried  hy  the  court,  and  its  decisinu 
fin  the  question  of  fact  is  entitled  to  the  same  weight  as  the  ver- 
dict of  a  jury. 

The  case  of  T/ic  State  r.  ^Fcrccr,  ?,2  la.,  40.5,  is  much  in  ])oiiit. 
Tlie  facts  are  stated  hy  the  court  ai-  follows:  '"  From  the  evidencu 
hefore  us,  it  a])pears  that  there  existed  an  organization  cidled  t!ic 
'AVinterset  Social  Cluh,'  the  object  of  wh'ch  was  to  suoply  its 
mcmher.s  with  intoxicating  li(piors,  to  he  used  as  a  1/everagr. 
The  manner  in  which  this  cluh  carried  on  its  operations  is  not 
explained  further  than  it  is  shown  that  defemlant  liad  jiosses-ioii 
of  the  li(piors  used,  and  sold  tickets  to  memhers  of  the  cliih, 
which  were  exclianged  for  or  given  in  payment  of  into\icatii!g 
]i(piors  in  defeiulant's  house,  hy  the  memhers  of  the  cliih  pre- 
senting the  tickets.  Tho  liquoi's  were  served  out  to  tlie  ticket 
holders  and  nuMuhers  of  tlie  cluh  l»y  defendant.  Persons  becair.u 
memhers  hy  signing  their  names  in  some  hook  (hut  what  were 
the  contents  of  the  hook  <loes  not  apjiearV  and  hy  haying  tickets." 

rj)on  tlie  triid,  tlie  defendant  oH'ered  in  evidence  tiie  article;; 
of  association  of  the  cluh,  ])Ut  they  were  excluded.  The  court 
eay:    "The  articles  of  association  are  not  in  the  ahridgement  uf 


HP 


MARMONT  V.  STATE. 


455 


the  record  before  us.  It  is  tliereforo  not  possible  f(»r  us  to  deter- 
luinc  tliat  they  were  material  aud  adniit^sible  as  evidence.  I'ut 
if  we  are  to  consider  that  they  were  of  the  purport  as  claimed 
hv  defendant's  counsel  in  their  argument,  we  must  conclude  that 
thev  were  correctly  excluded  by  the  district  court. 

"They  ap]H'ar,  by  the  statement  of  counsel,  to  iiave  been  iwthin:^ 
more  than  the  foundation  of  an  organization,  the  object  aud  in- 
tent of  which  was  to  evade  the  law  for  the  suppression  of  intem- 
perance, a  rather  clumsy  device  by  which  the  defendant  and  the 
uiend)ers  of  the  '  Social  CMnb'  hojied  to  defeat  that  law,  and  estab- 
lish a  place  of  resort  where  they  could  l)e  supplied  with  intox- 
icatinj^  li(|nors  for  unlawful  use.  The  fact  vhiit.  under  the  ar- 
ran'fement  ftf  sellin<ij  tickets,  the  mend)ers  of  the  club  became 
the  owners  of  the  li(|Uors  to  the  extent  of  the  money  paid,  does 
not  nudvc  the  sale  of  the  liquors  in  that  way  lawful.  The  rot 
of  sellijii;  the  tickets  was  the  sale,  in  fact,  of  the  li(|uors.  It  is 
c(uifessod  that  such  sales  were  for  the  ])urpose  of  supjdyiui^  the 
li(iiu)rs  to  the  ]uirchasers  to  be  used  as  a  beverai^e." 

Having  reached  the  conclusion,  in  the  present  case,  that  the 
beer  was  the  iiroperty  of  the  club,  and  that  the  a[»}iellaut  acted 
as  its  agent  in  making  the  sale,  the  ruling  in  the  above  case  is 
entitled  to  much  weight,  and  we  are  entirely  satistied  that  the 
transaction  set  out  in  the  agreed  statement  of  facts  amounted  to 
a  sale  in  violation  of  the;  law. 

I'ut  it  is  claimed  that  the  conviction  of  the  appellant  was 
wron<',  because  it  was  admitted,  on  the  part  of  the  state,  that  '•  it 
wa^  not  the  intent  of  the  said  society  in  its  organization,  nor  is 
it  tile  intent  of  its  m(Mid)ers  in  carrying  it  on,  to  violate  the  pro- 
visions of  any  law  of  the  state  of  Indiana." 

An  vininent  writer  on  criminal  law  says:  "The  doctrine  of  the 
inti'Ut,  as  it  pri'vails  in  ihe  criminal  law,  is  neivssarily  one  of  the 
foundation  principles  of  pu])Ii'' justice.  Th«n  i>  ..nly  one  crite- 
rion 1'V  which  the  guilt  of  men  is  to  be  tested.  It  is  whether 
the  uiiiid  is  criminal.  Criminal  law  relates  only  to  crime.  And 
neither  in  phil«'so|»hic;ii  ^peculation,  nor  in  rt-ligituis  or  moral 
Heutiment,  would  any  ]>eo])le  ''i  any  ag.'  allow  that  a  man  should 
be  dt^MiiL'd  guilty  uides-  his  laiiid  wus  f;o.  It  is  tlurei'ure  a  priii- 
ci[)le  of  our  h'gal  svstcm,  as  ]irob;ibly  it  is  of  r\i'ry  other,  that 
the  essence  of  our  otlense  is  the  wrongful  intent,  without  which 
it  camiut  exist."     1  ^>i^h.  i'rim.  Law,  sec.  -JST. 


•150 


AMERICAN  CRIMINAL  REPORTS. 


'<   n 


...' 


1  r 


WJiile  the  doctrine  as  jibove  stated  is  uiKjuestionably  tlic  law, 
in  its  ajiplication  to  the  facts  of  a  i)articiihir  case,  it  encounters 
and  is  s^oniewliat  modified  hy  arbitrary  lei^al  rules  which  it  has 
been  found  necessary  to  establish,  in  order  practicidly  to  admin- 
ister justice  among  men,  and  these  rules  are: 

1.  That  every  man  is  ])resumed  to  know  the  laws  ol  the  country 
in  whieh  he  dwells;  or  in  which,  if  residing  abroad,  he  transacts 
business. 

2.  That  ignorance  of  the  law  excuses  no  man. 

3.  That  every  ])erson  is  ])resumed  to  intend  the  natural  and 
reasonable  conse(juences  of  his  acts,  aiul  when  ho  viohites  a  law 
the  presumption  arises  that  it  was  wilfully  done. 

4.  That  ignorance  or  mistake  in  point  of  fact,  when  the  ]»ersou 
has  been  misled  without  fault  or  carelessness  on  his  i>art,  and 
where  he  believes,  and  has  reasonable  ground  to  believe,  a  certain 
state  of  facts  to  exist,  is  excused  for  acts  honestlv  done  while  so 
misled.  1  liisli.  Crim.  Law,  sec.  101;  Squire  v.  The  Slate,  10 
Ind.,  4.')9. 

The  appellant  is  presumed  to  have  known  the  law,  and  if  he 
did  not,  it  is  no  defense.  There  is  no  pretense  that  there  was 
any  mistake  of  fact.  The  a})pellant  having  done  an  act  in  viola- 
tion of  the  law,  the  itresuniption  is  that  the  act  was  done  wil- 
fully. The  question  i)resented  for  cmr  decision  is,  wliether  such 
]iresuinj)tion  is  overcome  by  the  admission  nuide  by  the  state. 
That  admission  is  to  be  construed  in  connection  with  all  the 
other  admitted  facts;  and,  in  our  opinion,  it  cannot  be  construed 
as  an  admission  that  there  was  no  criminal  intent;  but  that  the 
mend)ers  of  the  association  believed  that  their  acts  were  not  in 
violation  of  law,  and  that  the  appellant  was  not  guilty  uidess  the 
facts  admitted  rendered  him  so.  This  is  shown  by  the  last  ad- 
mitted fact:  "  If  said  act  of  drawing  atid  handing  said  glass  of 
beer  to  said  (Jrasson,and  receiving  and  putting  said  live  cents  in 
the  treasury  of  said  society,  under  the  circumstanees  aforesaid, 
constitute  an  unlawful  sale  of  intoxicating  lifpior  bjr  the  ])ur[)ose 
of  gain,  within  the  meaning  and  under  the  ])rovisions  of  the  act 
of  the  general  assenddy  of  the  state  of  Indiana  of  February  27, 
1873,  the  defendant  is  guilty;  and  if  otherwise,  he  is  not  guilty.'' 

This  admission  removes  any  aml)iguity  that  may  exist  in  the 
admission,  with  reference  to  the  intent  of  appellant,  and  must 
control.    The  sole  question,  therefore,  for  our  decision  is,  whether 


aw. 


REG  IN  A  V.  UELIIONT. 


457 


tlie  trails-action,  as  agreed  upon,  aniouuted  to  an  unlawful  salu  of 
intoxicating  liciuor. 

Having  reached  tlio  conclnsiou  tliat  the  transaction  amounted 
to  a  sale,  we  must,  necessarily,  hold  that  it  was  unlawful. 

The  judgment  is  ailirnied,  with  costs. 


ill 


' .» i 


RkgINA  vs.  liKLMONT. 

(:Jo  U.  C.  Q.  H.,  298). 


Reoulatiox  of  TAVEUNa:    I'mhihlthifi  U<jltt  in  htf-foom  —  32  Vic,  ch,  32, 
fii'c.  G,  0  —  Const nirl ion  of, 

Tlio!5'2(l  Vic,  ch.  H'2,  sec.  fi,  0.,  oimlilcs  (Ik;  luiliijo  coininissiouprs  to  pass  by- 
laws for  "  n'f,'U  ;iliiiK  "  l"n;t'ii'<<'tl  tavcnis.  A  hy-liiw  utidcr  fliis  luitliority 
lirovidt'il  tliiit.  (lie  liiu'-rooiu  slioukl  be  iloscd  iiiuluiioi'cuiiii'd,  cxci'iitby  iiiciii- 
lii'i-s  of  tlu!  ki't.'pi'r's  family,  or  his  omiikiyfcs,  and  siioiild  have  no  liyht  ex- 
(■('lit  tJi''  natural  li^'•llt  of  day,  durinj,'tlii'  tinn'  proliibiti'd  liy  the  by-law  for 
tlio  sale  of  lii|iu)rs,  /.  c,  from  12  at  ni^dit  to  o  A.  M.  Jlrld,  that  the  by- 
law was  unauthorized,  and  a  conviction  under  it  was  (luashed. 

Diking  last  Easter  term,  X.  JNIiirphy  ohtnined  a  rule  ju'si, 
culling  uj)on  the  ]»olice  magistrate  of  the  city  of  Toronto,  and 
the  informant,  to  show  cause  why  the  conviction  made  herein 
should  not  he  (juashed,  on  the  ground  that  the  commissioners  of 
])olice,  in  enacting  the  by-law  under  which  the  conviction  took 
]ilaec,  exceeded  their  powers;  that  the  hy-law,  so  far  as  the  iSth 
section  is  concerned,  is  null  and  void,  and  on  grounds  disclosed 
ill  iitlidavit  and  papers  liled. 

The  hy-law  in  (piestion  was  one  passed  under  the  authority  of 
C2  Yic,  ch.  32,  sec.  (5,  O.,  and  it  recited  the  1st,  2d,  'M  and  0th 
suhsections  of  section  C>. 

Section  0  enables  the  commissioners  to  pass  by-laws  "for  reg- 
ulating the  houses  or  jdaces  to  be  licensed,  the  time  licenses  arc 
to  be  enforced,"  etc.,  and  the  "  sums  to  be  jiaid  therefor." 

And  section  IS  of  the  by-law  provides:  "that  the  bar-room  ot 
every  licensed  tavern  in  use  for  bar-room  jmrposes,  shall  be  closed 
and  unoccupied,  except  by  members  of  the  family  of  the  keeper 
of  such  licensed  tavern,  or  by  a  ])erson  in  his  employinei  t,  and 
shall  have  no  light  therein  except  the  natural  light  of  day  during 


.^' 


458 


AMKIUCAN  ClllMIXATi  lIKl'Dfi'l'S. 


the  timi!  pndiiUitcd  ]>y  tliis  l»y-lu\v  for  tlio  sale!  of  intoxicutiii" 
li(j(tiv,  K.'ivc;  iuul  t'.\(!i'|»t  fur  iiu;<li('.iiiiil  j»iir|Hist'8,"  etc. 

I>y  the  j)i"i'{'e(liii<^  Koctioii,  the  tiiiits  jtroliiltitcd  was  after  tlic 
liour  (»f  \'2  lit  iiiirlit  until  ;">  A.  M.  tin-  followiii''  diiv. 

I'Ik!  (•(tiivictioii  <.'()iMj)l!iiiK'<I  of  was  for  iinlawfiilly  ami  kimw. 
]'ii<^ly  liaviiii^  ill  tlio  hai'-room  of  his,  (k'ft'iidaut's,  (-al<l  licciisfd 
tiiviTii  a  Iii;ht  other  than  the  natural  lij^^ht  <»fday,  to  wit:  the 
li^lit  of  and  from  a  ^as  hurner  rcl!e(;tini(  a  li;;ht  in  said  har-nioiii 
diiriiin'  the  time  j)r(diihited,  etc.,  contrary  to  the  provisions  of 
the  l»y-law  (d'  tlit!  )Mdic,e  coimnissi(tners. 

I)urin,;^  I'^aster  tirm,  C.  A'<>/v///,.s7//<,  (J.  ('.,  sliowed  for  ciiiisc,  :;j 
A'ic,  cli.  152,  ().,  and  ;'>I5  Vic,  eh.  tiS,  ( ),,  iuithoriziiiiLj;  tiui  imlici! 
r"'nMiiissiom'rs  to  jiass  sucli  a  bydaw.  'I'hey  ]ia\(!  ('.\|ii'('s>lv 
given  them  tin;  ])ower  to  ri'i^nlate  taverns,  etc..  Tliv.  hy-laws 
must  l)(!  interinvted,  and  it  must  be  assumed  that  the  coiiniiis- 
sioners  were;  actiiii!;  reasonably;  and  the  fact  that  if  coiirtrunl 
unreasoiialdy,  and  according  to  its  strict  letter,  it  might  lead  tn 
unreasonabh;  results,  is  no  ground  for  (quashing  it.  See,  also,  ;;j 
Vic,  ch.  2-J,  sec.  ."il,  (). 

jV.  Mnrjili;/^  roiitrii:  Sec.  ID  of  the  by  laws,  is  iinreasoiiabjo. 
(live  it  its  lillect,  and  the  family  must  sit  in  the  dark,  and  a  .serv- 
ant could  not  go  in  and  wind  U[»  a  cl(»ck.  'J'he  caus-e  why  the 
light  \nis  used  on  tlu;  occasion  complained  of  was  a  reasonable 
one;  it  was  to  wash  uj)  the  dishes  used  at  a  su|)jier,  which  was 
concluded  before  tla;  prohibted  h<»urs.  It  Is  ii<»t  pretended  that 
any  li(|iior  was  sold,  or  that  any  of  the  evils  which  the  act,  eilluT 
in  sj)irit  or  the  letter,  intended  to  guard  against,  occurred,  or 
uere  likely  to  occur. 


INfoiiitisoN,  ,].  It  was  coiitendi'd  that,  under  the  ])ower  of  ng- 
ulating  the  houses  or  jilaces  to  bi;  licensed,  tin;  p<»lice  coiiniiis- 
sioners  had  authority  to  pass  a  bydaw  such  as  tlieoiic!  in  (jiiestion, 
providing  that  the  bar-room  of  any  licensed  tavern,  and  any  room 
of  such  licensed  tavern  in  use  for  bar-room  jiurposes,  shall  Ik; 
closed,  and  remain  chtsed  and  unoccuiiied,  except  by  niember.-,  ol' 
the  family  <»f  the  keeper  of  the  tavern,  or  by  a  ])erson  in  his  em- 
ployment, and  shall  have  no  liglit  therein,  except  the  natmal 
light  of  day,  during  the  time  jtrohibited  by  the  same  by-law  for 
tlie  sale  of  intoxicating  liipiors,  that  is,  between  the  hours  of  Vl 
at  night  and  .5  o'clock  the  following  day. 


ti)xi<'iitiii<r 
ufttT  the 

M(i    kliiiw- 

lici'iiscil 
wit:     the 
Iijir-riKiiii 
•  visions  (if 


tl. 


ciiiisc,  ;;:j 

l((     |inlict; 

cxim's.-ly 

•J  Colllliiis. 
<'•>ll^t^ll(ll 

iit  Icail  t(. 
M,  hImi,  ;;2 

t';lS()Il;il,I|.. 

111(1  !i  f-cr\- 
u  why  tho 
iTJisdiiulile 
wliich  was 
iJiiled  that 
iict,  cithci' 
'(Minvd,  (!!• 


■cr  of  )■(■-•- 

coiiiiiiis- 

<|ii<'stioii, 

any  rooiri 

•,  siiall   1,0 

('IIiIh'IVS  (if 

II  hi.s  ciii- 
le  iiatuial 
)j-la\v  I'ur 
ur.s  of  IJ 


RKiaXA  r.  ni;i,M(»NT.  459 

The  Ity-luw  i»r<n'i«loH  tliiit  tin;  hiir-rooni  shall  lu;  cIosi.mI  uikI  re- 
main closed,  yet  Htill  it  iiiiiy  he  occiipii'd  l»y  the  faiuily,  which 
iMipIies  the  ojxiniiii^  and  shutting  of  the  i'(»on>. 

It  also  j>rohii»its  (ulthoiii^h  it  may  he  ovcuiiii-d  i  the  use  of  li;;ht 
tlicrein,  ex('t'|tt  —  what  i.s  not  very  likely  thi'y  can  have;  after  12 
at  ni,:,dit  -  tin:  natural  linht  of  day;  j)rohil)itin_i;'  li;^dit  from  u 
lire  ill  ii  stttvc,  which  would  Ih;  lUHiessary  in  the  winter  lime  for 
tilt!  ot'(*ii|»atioii  of  the  room  hy  family  or  servants,  as  well  to 
iireveiit  the  frct'/.iny;  of  the  li(|iiids  k((]>t  therein. 

It  ;4;oes  so  far  as  evcMi  to  ]»rohil)it  the  li^ht,  I  may  say,  of  the 
iiiooii,  or  the  li.i^ht  from  a  i!,iis  lanij)  in  the  street  j)enelratiii^  the 
har  room. 

This  coiivietioii  woiihl  nuiet  the  hitter  case,  for  the  defendant 
is  convicted  of  havini^,  in  the  har-rooin  ttf  his  said  licensed  tavern, 
a  liifht  otlujr  than  the  natural  li^-ht  of  day,  to  wit,  the  liii,]it  of 
and  from  a  <ms  huriier  rellectiim'  a  liiiht  in  said  har-room  durinj; 
the  time  prohihitecl. 

What  is  intended  or  meant  h}'  I'elleetinij^  a  liijfht,  I  cannot  say. 
Its  ordinary  meaning  is  throwin*^  bairk  a  liyht;  hut  he  that  as  it 
may,  in  our  opinion  the  eii^hteeiith  section  of  the  hy-Iaw  is  not 
iuithori/ed  hy  the  statute,  or  wilhin  its  meaniiii^  or  intent. 

Tilt!  powt;r  to  ])ass  l)y-laws  lor  reifulatini^-  the  houses  or  ])lace8 
to  he  licensed,  in  our  jiid,:Li;meiit,  means  rci^ulatittiis  in  respect  of 
the  sale  of  spiritiituis  litjuors  therein,  the  hours  and  times  at 
which  they  may  he  stdd  or  prohihited,  ami  with  reference  to  the 
jifc'oiiimodation  of  ^mists,  and  in  respect  t)f  ifamhlin<.f  therein, 
and  not  allowing;'  tlisorderly  ]ters(»ns  to  frecpient  the  ju'emises,  as 
]inivided  hy  tin;  si.\tt;tMith  section  of  the  hy-laws. 

The  reij;ulati(jn  coultl  hardly  have  (!t)nteinplatetl  that  the  ju'ivatc 
aii<l  domestic  arraiiij^ements  of  the  family  should  he  interfered 
with,  or  that  the  har-room  couM  not  he  used  hy  the  family  with 
a  li:,dit  when  heiiiii^  closed  for  the  salt;  of  litjuor  durin:;;  the  pro- 
]iil)ited  hours,  antl  that  a  li;;-ht  should  he  an  oll'ense. 

]t  Would  he  most  uiireasonahle,  I  think,  tt)  hold  that  within 
those  lK)ur.s  ])olice  commissioners  could  prohibit  the  tavern 
keeper,  or  hi.^  family,  or  servant,  during  their  occupation  of  it, 


from   usiuiT  ii  liirht*  <>•'   i 


f  tl 


ley 


were 


cl 


eaninj;  f>r  wasliiuir  tlie 


th 


idiiiii  that  the  usiiii,'  of  a  light  would  ^/i  an  offense,  suhjecting 
the  tavern  keeper  t(»  a  penalty  of  *?50,  "■■■  provided  hy  this  by- 
law, or  ini])risonmcnt  with  hard  labor  for  six  months;  or,  mj  in 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


'■ 


1.0 


1.1 


■»   US    12.0 


6" 


Photographic 

Sciences 

Corporation 


23  WIST  MAIN  STMIT 

«yUSTIR,N.Y.  145M 

(716)S73-4S03 


m 


"I 


6^ 


460 


AMERICAN  CRIMINAL  REPORTS. 


the  case  before  us,  where  it  appears,  from  the  evidence  rcturiicJ, 
the  tavern  keeper  and  his  servant  were  using  the  light  clearing 
away  dishes  after  a  supper  that  had  been  provided  that  evening 
at  the  house. 

It  is  not  pretended,  nor  does  it  appear  by  the  evidence,  that 
the  bar-room  was  open  for  the  sale  of  liquors,  or  that  persons 
other  than  the  tavern  keeper,  his  family,  or  servant,  were  there- 
in at  the  time.  The  conviction  is  for  merely  having  a  light 
therein. 

I  notice  that  the  by-law  does  not  proliibit  the  use  of  a  light 
during  the  prohibited  hours  in  a  saloon;  if  it  is  proper  to  pro- 
hibit the  use  of  a  light  in  a  tavern,  it  is  equally  so  in  a  saloon, 
which  is  only  a  place  for  drinking,  and  freijuently  a  den  of  vice. 
As  an  authority  bearing  on  the  case,  I  refer  to  the  Calder  cO 
Jlehhle  NavUjatloii  (Jo.  v.  Pilling  ct  al.,  14  M.  &  W.,  70, 

We  are  quite  well  aware  liow  ditftcult  it  is  for  the  municipal 
authorities  to  enforce  regulations  for  the  orderly  keeping  uf 
such  licensed  houses,  as  well  to  meet  the  devices  parties  may  re- 
sort to  for  the  purpose  of  evading  and  contravening  them,  aiul 
no  doubt  it  was  with  such  a  view  the  ISth  section  of  the  by-law 
was  ptissed;  but  at  the  same  time  care  must  be  taken  when  cre- 
ating oft'enses  to  which  are  attached  severe  penalti»'s,  that  tlie 
legislature  has  clearly  given  the  j)ower  to  do  so. 

On  the  whole,  we  are  of  the  opinion  that  the  conviction  should 

be  quashed.     There  will  be  no  costs. 

Conviction  quashed. 


Ceakfoss  vs.  State. 
(42  Md.,  40:3.) 


LiQUon   Selling:    Giviitf/  —  Constitutional   law  —  Pku'ling  —  Statutovij  con- 
struction. 


A  statnt(>  entitled  "An  act  proliiliitiiig  the  sale  of  spiritiioii,s  or  fcrmontcJ 
li(l\iors,"  etc.,  prohibited  also  the  j,nving  away  of  luiiior  on  election  dnys. 
Tiie  provision  against  trivinf^  was  held  not  void  or  obnoxious  to  the  ■.•oiistitu- 
tional  provinion  that  "  every  hiw  shall  eniln-iu;c  but  one  subject,  and  that 
shall  be  described  in  the  title." 

It  is  sufficient  to  char<,'e  an  oflense  in  the  words  of  the  act  creating  the  oH'ense, 
•when  the  charge  made  in  that  fonn  fully  informs  the  defendant  of  the  na- 
ture of  the  oifenso  chiu-ged  against  hun. 


CEAEFOSS  r.  STATE. 


461 


?! 


II 


!C  returnej, 
^lit  cleuriiiir 
Jilt  eveniiiL' 

itlenco,  that 
lat  persons 
were  tliere- 
'".J,'  «■  light 

of  ii  light 
ler  to  pro- 
»  a  saloon, 

It'll  of  vice. 

i  Caller  cO 

Hiunicipal 
x'e])iii^r  of 
los  iiiiiy  re- 
tlioiii,  and 
the  hy-hiw 
I  when  ore- 
's, that  the 

;ion  should 


tttitonj  con- 


r  fcnuoiitcJ 
•'ftioii  (lays. 

llL'  <.'(lllstitll- 

■t,  1111(1  t!iat 

tlio  olil'iiso, 
of  tlie  na- 


A  statute  prohiljiting,  among  other  things,  the  giving  away  of  spirituou3 
liquors  on  election  days  by  any  person,  is  held  to  extend  to  and  include  acts 
of  hospitality  in  a  private  house. 

Statutes  are  to  be  interpreted  according  to  their  natural  and  obvious  meaning, 
and  where  there  is  no  ambiguity  in  the  language  and  its  meaning  and  pur- 
pose a.-e  clear,  courts  are  not  authorized  either  to  limit  or  extend  the  lan- 
guage of  the  act  by  constniction. 

Stewakt,  J.  The  indictment  charged  the  appellant  with  a 
violation  of  the  act  of  1805,  cli.  191,  in  giving  to  one  Michael 
I3nrke,  spirituous  liquor,  to  wit:  "  Whisky,"  on  the  day  of  an 
election,  in  "Washington  county. 

The  traverser  pleaded,  that  in  his  o\\ti  house,  he  was  visited 
by  some  frieiid>j,  who,  in  the  course  of  hospitality,  partook  of 
some  whisky  which  he  had  there  for  his  own  nse. 

The  state  demurred  to  this  plea.  The  court  sutained  the  de- 
mur' r  and  imposed  a  fine  on  the  appellant. 

Under  the  writ  of  error  this  judgment  has  been  brought  up 
for  our  review. 

In  the  case  of  Sjnilmnn  v. State,  27  Md.,  520,  where  the  state 
demurred  to  the  ]>lea  of  the  traverser,  and  judgment  by  the  cir- 
cuit court  was  rendered  again^st  liim,  upon  writ  of  error  to  this 
court  it  was  decided,  that  he  could  avail  himself  of  any  defect 
in  the  imlictment,  notwithstanding  the  provision  of  tlic  Code, 
art.  3(>,  sec.  S2;  that  all  the  pleadings,  in  criminal  or  in  civil 
cases,  were  open  to  review,  under  demurrer;  and  judgment  must 
he  given  against  the  party  wliose  pleading  was  first  defective. 
In  the  abocnce  of  such  demurrer  lie  could  liavc  no  such  defense. 
Cowman  t\  The  State,  12  Md.,  250. 

It  was  urged  in  the  brief  of  the  appellant's  counsel,  that  the 
word  ""give,"  in  the  act  ir  question,  must  be  construed  to  mean 
"sell,"'  an<l  the  offense  be  so  described.  That  otherwise  the  act 
is  not  in  accordance  with  the  29th  section  of  article  3  of  the 
constitution,  declaring  "  that  every  law  shall  embrace  but  one 
subject,  and  that  shall  be  descril)ed  in  its  title." 

The  title  of  the  act  is,  "An  act  prohibiting  the  saleoi  spiritu- 
ous liquors,  in  the  several  counties  of  the  state  on  the  day  of 
elections."  That  the  act,  from  its  title,  only  prohibiting  the  sale, 
is  not  unconstitutional,  because  by  its  first  section  it  makes  the 
"gift  "  as  well  as  the  "  sale  "  of  liquors,  unlawful,  has  been  set- 
tled by  this  court,  in  the  case  of  Pavkinsoti  v.  State,  14  Md.,  184. 
See  also  Franklin  v.  State,  12  id.,  230. 


^SJ;? 


ul 


462 


AMERICAN  CRIMINAL  REPORTS. 


Further  objection  was  made  to  the  iiulictment  hocauso  it 
cliarj^ed  the  traverser  with  unlawfully  giviii"^  "  wliisky  "  witli- 
out  setting  forth  the  facts  which  made  the  "giving"  unlawful. 

The  indictment  using  the  terms  of  the  law  was  sutheiont.  It 
is  only  where  the  act  charged  is  not  in  itself  unlawful,  Itut  lic- 
comes  so  by  other  facts  connected  with  it,  that  the  facts  in  wliich 
the  illegality  consists  must  be  set  out.     1  Chit.  Crim.  Li-w,  2'2'.K 

It  is  not  necessary  to  state  matter  of  evidence  unless  it  alters 
the  offense.  Bishop  on  Crim.  Proc,  sec.  270.  See  also  Porlkhi- 
ctm  V.  The  State,  14  Md.,  184. 

The  "giving"  of  intoxicating  li<jUor  on  the  day  of  election  is 
declared  by  the  law  to  be  an  offense  —  that  was  charged  in  the 
words  of  the  act,  describing  also  the  party  to  whom  it  was  given. 

The  indictment  informed  the  appellant  of  the  nature  t»f  the 
offense.  lie  ^\as  enabled  to  make  his  defense,  and  to  prutoct 
himself  against  the  repetition  of  the  charge  in  any  other  trial; 
the  tribunal  trying  him  couM  reach  its  conclusion  thereon,  and 
apjdy  the  proper  punishment. 

These  are  the  purposes  re(piiring  certainty  in  criminal  pro- 
ceedings. 

The  act  provides,  "  That  it  ahall  not  he  laii]fal  for  thr  k>',pe)> 
of  any  hoteJ^  tarern,  utofe,  tlri nl'lng  edahl ii^lnnent.  or  anij  (>t]i<  r 
2'>lace  irhe)'e  litjuors  are  solil,  or  for  am/  jh  r.'^on  or  jier.sn/tN,  dJ- 
recthj  or  hid! recti ij,  to  i^eV,  harter  or  {/ire,  or  di.y>o.\,'  nf  urn/ 
sjnritiioufi  or  fi'riii<:nted  liqaors,  ale  (rr  tner^or  infn.rii-ntiixi 
drinks  (f  am/  kind,  on  the  ifai/  (f  any  election  her<<ift>  r  to  Ia 
held  in  the  nereral  counties  of  this  stated 

There  is  no  quostion,  as  urged  by  the  apjicllant's  conn-cl,  that 
in  construing  this  statute  the  real  intent  of  the  legislatiiri'  inii.-t 
prevail  over  the  literal  sense,  if  there  be  any  inconsistency;  a 
thing  within  the  letter  of  the  statute  is  not  within  the  statute, 
unless  it  be  within  the  intention  of  the  makers.  ]>nt  where  the 
M'ords  are  plain,  they  are  the  best  evidence  of  what  was  meant. 
AVhilst  the  statute  is  not  to  be  followed  in  its  literal  term>.  if  it 
can  be  discovered  that  such  was  not  the  intention,  yet  the  niean- 
ing  must  l>e  ascertained  by  a  reasonable  construction  to  bo  given 
to  the  provisions  of  the  act,  and  not  one  founded  on  mere  arbi- 
trary conjecture. 

Wlien  clear  words  are  used  to  indicate  the  purpose,  there  Is 
no  necessity  to  resort  to  other  aids.     Bcale  v.  Ilarwood,  2  11.  & 


l)ccanso  it 
%  "  with- 
milawful. 
Hciciit.    It 

III,  but  1)0- 

t-'  ill  wli it'll 

'^  it  .'liters 
<>  Parkin- 

olectioii  is 
^'»'"1  ill  the 

was  ,i,nvcn. 

turo  of  tlio 
to  protect 

'titer  trial; 

oroon,  ami 

miiial  Y^vo. 

tj(c  Ix'i',  p,^)< 
'  "HI/  nfli,  r 
^•r.snil.'^,  ij'l- 
>.sr  Iff  lOliJ 
tuxti-iiflnff 
'ft'  r  to  fic 

\m<v\,  that 
tiirc  iiui.-t 
isteiK'v;  a 
lu  statute, 
where  the 
"as  meant. 
'\'m<,  if  it 
the  meaii- 
'  1(0  i^-iveii 
lero  arlii- 

-\  there  is 
7,  L>  II.  k 


CEARFOSS  V.  STATE. 


4G3 


J.,  107.  K'o  man  incurs  a  penalty  unless  the  act  wliicli  subjects 
him  to  it  is  clearly,  within  both  the  spirit  and  letter  of  the  statute. 
Things  which  do  not  come  within  the  words  are  not  to  be  brought 
within  them  by  construction.  The  law  does  not  allow  of  con- 
structive offenses  or  of  arbitrary  punishment.  Dwar,  on  Stat.,  247. 

Bat  when  the  acts  are  within  the  words  of  the  law,  there  may 
be  cases  not  within  its  spirit,  or  within  the  scope  of  the  mischief 
intended  to  be  avoided. 

Whether  the  administration  of  intoxicating  liquors,  in  good 
faith,  for  medicinal  or  otiier  necessary  purposes,  although  within 
the  letter,  would  be  within  the  mischief,  is  a  question  not  neces- 
gary  to  be  decided  in  this  case;  but  if  it  should  ever  arise,  we 
ghoiild  have  no  hesitation  In  saying  that  it  would  not  be  an  of- 
fense within  the  spirit  of  the  act. 

Statutes  should  be  interpreted  according  to  the  most  natural 
and  obvious  import  of  their  language,  without  resorting  to  sub- 
tle or  forced  construction,  for  the  i)urpose  of  either  liiuitiiKj  or 
extend UKj  their  operation.     Dwar.  Stat.,  141-. 

It  would  be  dangerous  in  the  extreme,  to  infer  from  extrinsic 
circumstances,  that  a  case,  for  which  the  words  expressrly  provide, 
ehall  be  exempt  from  their  operation.     Story's  Contl.  Laws,  10. 

It  is  only  in  cases  where  the  meaning  of  a  statute  is 'doubtful, 
that  the  courts  are  authorized  to  indulge  in  conjecture,  as  to  the 
intention  of  the  legislature,  or  to  look  to  conse(juences  in  the 
construction  of  the  law.  AVhen  the  meaning  is  plain,  the  act 
mwit  be  carried  into  eilect  according  to  its  language,  or  the 
courts  would  be  assuming  legislative  authority.  SaAt  v.  Heed, 
10  Pet.,  idi. 

The  intention  may  be  gathered  from  the  occasion  and  necessity 
of  the  law.     State  v.  Jfilhurn,  9  Gill,  105. 

According  to  the  express  terms  of  this  law,  and  the  policy  the 
legislature  seemed  to  have  in  view,  there  is  no  escape  from  the 
conclusion  that  this  case  is  within  the  letter  and  mischief  of  the 
law,  and  which  cannot  be  avoided  by  the  courts,  without  a  refusal 
to  enforce  its  provisions. 

The  words  of  the  law,  the  occasion  of  its  passage,  the  applica- 
tion to  the  day  of  election,  the  absolute  jtrohibition  to  licensed 
dealers  in  licpiors,  the  manifest  eit'ort  to  employ  terms  to  prevent 
evasion,  its  prohibition  to  all  persons  without  reservation,  the 
e.\tent  of  the  penalty,  its  reference  to  any  and  all  intoxicating 


464 


AMERICAN  CRIMINAL  REPORTS. 


: ,.  SI 


drinks,  without  exception  as  to  person  or  place,  afford  undoubted 
evidence  of  the  design  of  the  legislature  to  discountenance  tlieir 
use  in  any  of  the  modes  specified  on  election  days. 

During  the  collection  of  the  people  in  unusual  numbers,  on 
such  occasions,  with  tlieir  feelings  warmly  enlisted,  and  uiulor 
circumstances  calculated  to  arouse  the  most  active  efforts  of  per- 
sons and  parties  to  pi'omote  success,  causing  in  themselves  nuicli 
excitement;  tlie  legislature,  we  take  it,  intended  there  should  be 
no  such  additional  element  of  disorder  as  intoxicating  liquor. 

All  keepers  of  places  where  it  was  accustoined  to  be  sold,  witli 
license  otherwise  to  sell,  are  strictly  and  under  heavy  penalty, 
prohibited  from  disposing  of  them,  in  any  way,  on  that  day. 
They  are  Udt  allowed,  dl recti ij  or  indirectly,  to  sell,  barter,  give 
or  dispose  of  such  H<|Uors. 

This  class  of  persons,  by  special  designation,  although  they 
have  ])aid  for  the  license  to  sell  otherwise,  are  denied  the  right. 
All  other  persons  are  prohibited  from  like  use. 

If  the  appellant  be  excepted;  if  he  may,  upon  the  plea  of  hos- 
pitality or  social  intercourse  invite  his  friends  to  his  house,  and 
there  entertain  them  by  the  use  of  intoxicating  drinks,  with  im- 
punity, other  persons,  without  home,  cannot  be  denied  the  like 
privilege  fo  indulge  their  frieiids  by  its  use,  in  their  rooms,  at 
the  hotel,  or  other  places  of  festive  resort. 

Where  is  there  to  be  any  limit?  AVould  not  such  a  construc- 
tion of  the  act  as  tolerated  sue  use  of  intoxicating  drinks  reu- 
der  the  law  in  a  great  measure  a  nullity? 

It  is  obvious  the  legislature  was  apprehensive  of  the  necessity 
of  such  a  law;  and  that  there  would  be  insidious  efforts  to  evade 
it,  under  one  pretext  or  another;  and  therefore  has  provided,  by 
apt  terms,  against  the  use  of  intoxicating  drinks,  in  any  of  tlie 
modes  described,  by  any  and  all  persons,  on  the  occasion  pro- 
vided for. 

The  demands  of  reasonable  hospitality,  or  the  civilities  of 
social  life,  can  be  gratified  on  the  day  of  election,  at  least,  with- 
out violation  of  this  law. 

Its  provisions  interpose  no  obstruction  whatever  to  the  obliga- 
tions of  hospitality.  At  any  rate,  such  indulgences  must  be 
subordinated  to  the  higher  demands  of  the  law. 

Whether  the  legislature,  in  the  exercise  of  its  police  authority, 
for  the  accomplishment  of  the  purposes  contemplated,  have  acted 


iindonLted 
auce  tlieir 

mbcrs,  on 
ind  iiiuler 
I'ts  of  per- 
ves  much 
should  bo 
liquor, 
sold,  witii 
y  penalty, 
that  day. 
irter,  give 


HEXSLY  V.  STATE. 


405 


with  the  soundest  discretion  or  not,  it  was  their  prerogative  to 
determine;  they  were  the  best  judges  as  to  that,  an<l  their  de- 
termination is  not  subject  to  judicial  review.  This  court  has  no 
power  to  measure  the  extent  of  legishitive  discretion  or  author- 
ity, unless  where  constitutional  limitation  has  prescribed  bounds 
thereto. 

There  can  be  no  question  of  the  power  of  the  legislature  to 
enact  the  law,  and  that  this  case  comes  clearly  both  within  the 
letter  and  spirit  of  the  act. 

Judgment  affirmed. 
Decided  3d  June,  1875. 

Gkason  and  Robinsox,  JJ.,  dissented. 


)ugli  they 
the  right. 

ea  of  hos- 

louse,  and 

,  with  ini- 

:l  the  like 

rooms,  at 

construe- 
inks  ren- 


nccessity 
3  to  evade 
vided,  by 
ly  of  the 
sion  pru- 

ilities  of 
ist,  with- 


0  obliga- 
must  Ije 


uthority, 
ave  acted 


IIexsly  vs.  State. 
(o2  Ala.,  10.) 

Husband  AND  Wife:    Liquor  scllhifj  —  Evidence. 

The  liushantl  may  be  crinniially  punislied  foi-  illegal  sales  of  liquor  made  by  his 
wife  in  liis  prcseiiee  ami  with  his  knowli.'df,"'. 

On  tlie  trial  of  a  huwband  for  lui  illegal  sale  of  liquor  by  the  wife  in  his  pres- 
ence and  \vith  his  knowledge,  evidence  of  foiuner  sales  by  the  wife  in  his 
pr('s(<nco  is  admissible  to  illustrate  the  character  of  the  sule  in  the  case  on 
trial. 

Testimony  that  A.  bought  liquor  of  B.  is  evidence  that  B.  sold  liquor  to  A. 

Appeal  from  Circuit  Court  of  Etoxoah. 

Tried  before  Hon.  AV.  L.  "Wiiiti/xmv. 

The  apjiellant,  Ilandall  Ilensly,  was  indicted  and  convicted 
under  §  3018,  Tl.  C,  for  retailing  spirituous  liquors  without 
license.  One  Spurlock,  a  state's  witness,  testified  that  within 
twelve  months  before  the  finding  of  the  indictment,  he  went  to 
llensly's  residence,  and,  in  his  house  and  presence,  asked  his  wife 
for  the  whisky,  who  went  to  the  '•  smoke-house  "  near  by  and 
•rot  it,  return inir  with  it  to  the  shoe  bench  at  which  witness  and. 
defendant  remained  while  she  was  gone,  and  there  delivered  a 
pint  of  whisky  to  witness  in  defendant's  presence.  This  witness 
further  testified  that  "he  had,  on  various  occasions,  bought 
whisky  from  defendant's  wife,  at  his  residence,  during  said  year. 
Vol.  1.-30 


(! 


■■(^.r^V 

4C6 


AlIHRICAX  CRIMINAL  REPORTS. 


ill  qnantitios  of  a  (juart  and  above,  and  diirin*^  or  while  witness 
was  getting  the  whi«ky,  defendant  was  knocking  about  tlie  prein- 
ises."  Another  witness  for  the  state  testified  that  "  lie  \uu\  often 
got  whisky  from  defeiuhmt's  wife  during  tlie  year  before  the 
indictment  was  found,  at  his  residence,  in  quantities  from  a  lialf 
pint  to  a  quart,  and  above;  tliat  defendant  was  present  on  one 
occasion,  .and  about  tlie  ]>rcmiscs  on  the  others,  but  said  and  did 
notliing  in  regard  t(t  tlie  sale  and  delivery  of  the  whisky." 

After  this,  the  defendant  moved  the  court  to  exclude  all  the 
evidence  of  sales  of  a  quart  and  over,  on  the  ground  that  it  was 
illegal,  irrelevant,  and  inadmissible  under  the  issues.  The  ccttirt 
overruled  this  motion  .'uid  defendant  excepted. 

The  court  of  its  own  nu>tion  charged  the  jury,  "  if  they  believe, 
from  the  evidence,  that  the  wifeof  defendant  sold  whisk}'  in  (pianti- 
ties  less  than  a  quart,  in  said  county,  within  twelve  months  before 
the  finding  of  the  iiidictnu'nt,  in  the  presence  or  within  the 
knowledge  of  the  defendant,  he  is  guiltv  as  charged."'  The  de- 
fendant  excejtted  to  the  giving  of  this  charge,  and  re(juested  the 
court  to  give  the  following  written  charges,  each  of  which  the 
court  refused,  and  to  each  of  which  refusals  defendant  duly  ex- 
cepted : 

1.  "If  the  jury  believe,  fro:n  the  evidence,  that  Spurlock  went 
to  defendant's  liouse  and  asked  his  wife  in  his  presence  for 
whisky,  and  she  went  to  the  smoke-house  and  got  it,  in  a  (piaii- 
tity  less  than  a  quart,  and  took  it  into  the  house  in  presence  of 
defendant,  and  Spurlock  took  it  away,  then  defendant  is  not 
guilty.*' 

'2.  "  The  state  is  bound  to  i)rove  a  sale,  and  if  it  has  failed  to 
])rove  what  was  })aid  or  to  be  ])Hid  for  the  whisky,  then  no  sale  is 
proved  and  the  jury  cannot  find  defendant  guilty." 

The  various  rulings  to  which  ex;ieptions  were  reserved  are 
assigned  for  error. 

Jiiiiies  Aiken,  for  appellant:  1.  The  evidence  does  not  show 
such  a  presence  of  the  husband  as  will  raise  the  legal  ])resiim]i- 
tion  of  coercion  by  him.  The  wife  acted  voluntarily  in  the  mat- 
ter, and  defendant  had  no  part  or  lot  in  it.  2  Iluss.  on  Crimes, 
21.  The  court  should  at  least  have  left  the  question  of  coercion 
to  be  passed  on  by  the  jury.     Sif^de  *'.  Parkcrson,  1  Strob.,  1(!'J. 

2  Xo  sale  was  proved.  A  current  price  in  money  is  essential 
to  a  sale.     2  Bish.  Crim.  Law,  §  903. 


0  witness 
lie  ]»roiii- 
liiid  ofttMi 
c'furu  tlio 
iini  :i  hiilf 
it  on  uno 

1  iind  dill 

y." 

h  all  the 
lilt  it  was 
The  court 

y  believe, 
in  (juanti- 
:liri  before 
itliin  tlie 
The  de- 
lected the 
vhieli  the 
;  duly  ex- 

loek  went 
!<enee  for 
n  ii  (juan- 
I'esence  of 
nt  is  not 

i  failed  to 
no  t^ale  is 

■rved   are 

not  show 
j)resunii)- 

the  iiiat- 
i  Crimes, 

coercion 
rob.,  hVJ. 

essential 


HENSLY  V.  STATE. 


467 


3.  The  evidence  objected  to  was  not  relevant  in  any  point  of 
view,  and  sliotdd  have  been  excluded.     40  Ala.,  720. 

JohiiW.  A.  Sctnfitrd,  Attorney  General,  contra:  Under  the 
evidence,  the  law  ]iresunie8  that  the  acts  of  the  wife  were  done 
inuler  the  hnsband's  command  and  with  \\\\,  approbation,  and  he 
is  answerable  criminally  therefor.  Schouler  Dom.  Tlel.,  p.  100-1 ; 
J)aKU  V.  The  SMe,  15  Ohio,  72;  1  Blsh.  Crim.  Law,  §  452. 

2.  To  buy  sijjjnities  '*  to  obtain  by  i)aying  a  price  or  equivalent 
in  money."  The  testimony  of  the  witness,  that  he  bought  the 
whisky  is  uncontradicted.  The  amount  paid  is  not  an  element 
of  the  oflense,  and  entirely  immaterial.  2  Bish.  Crim.  Law, 
§  (t!>3. 

:'..  The  evidence  of  other  sales  was  admissible  to  prove  that 
accused  habitually  sold  liquor,  and  that  he  knew  and  consented 
to  the  acts  of  liis  wife.  Scihert  v.  State,  40  Ala.,  60;  Pierce  v. 
State,  id.,  743. 

Manmno,  J.  An  offense  not  mahnn  hi  se,  committed  by  a 
married  wonum  in  the  presence  and  with  the  knowledge  of  her 
husband,  is  presumed  to  have  been  committed  by  his  authority, 
and  he  is  punishable  by  indictment  for  it,  if  it  be  an  indictable, 
offense. 

A  witness  who  says  that  he  bought  spirituous  liquor  of  a 
married  woman  in  the  presence  of  her  husband,  in  quantity  less 
than  a  (jnart,  testifies  thereby  that  she  sold  it  to  him  in  the  ])re3- 
eiice  of  her  husband.  The  terms  "buy ' '  and  "  sell "  are  the  con- 
verse of  each  other,  and  a  witness  who  says  that  he  bought  of 
antither  a  particular  article,  affirms  that  the  person  with  whom 
lie  dealt  sold  it  to  him.  It  is  not  necessary  to  say  further  how 
innch  or  what  the  purchaser  paid  for  the  af'ticle.  If  the  accused 
desired  ex])lanation  in  that  direction,  he  should  liave  obtained  it 
by  cross-examination,  or  other  evidence.  The  testimony  about 
other  sales  of  liquor  by  the  wife  in  the  presence  of  the  husband 
Mas  admissible,  for  the  purpose,  not  of  convicting  them,  but 
"  to  illustrate  the  character  of  the  sale  "  to  Spurlock,  as  made  by 
the  authority  of  the  husband.  Pearee  t\  The  State,  40  Ala.,  720. 
If  defendant  feared  that  any  other  effect  would  be  given  by  the 
jury  to  such  testimony,  he  should  have  asked  of  the  court  a 
charge  thus  qualifying  it. 

The  first  charge  asked  was  properly  refused,  because  it  as- 


r 


t} 


I 


4CS 


AMERICAN  CRIMINAL  REPORTS. 


Bunies  that  the  witness  dkl  not  bny  tlie  liquor,  ns  he  lind  testified 
he  did.  The  second  charge  asked  was  also  properly  refused,  for 
reasons  hereinbefore  indicated. 

There  is  no  error  in  the  record,  and  the  judgment  of  the  cir- 
cuit  court  is  afHrnied. 


Latiiuoi'e  vs.  State. 

(jl  Iiul.,  102.) 

LiQUOB  Selling  :    licspoiifibilifi/  of  ciiiiiloi/er  for  sale  of  liquor  hij  nciraiit. 

An  emiJoyer  is  not  criminally  rcfiponsiljle  for  an  illogal  sale  of  Ikiiior  by  liij 
servant,  made  without  his  knowlodfrt'  or  consent,  and  in  violation  of  positive 
instmctions  given  by  him  in  good  faitli. 

"WoKDEX,  J.  Prosecution  against  appellant  nnder  the  act  of 
February  27th,  1S73,  for  selling,  on  the  14th  of  March,  Is 74, 
intoxicating  liquor  to  one  llezin  "NVinship,  a  person  in  the  habit 
of  getting  intoxicated.  Plea,  not  guilty;  trial  by  the  jury;  con- 
viction; motion  for  a  new  trial  overruled,  and  judgment. 

The  appellant  claims  that  the  evidence  was  radically  defective 
in  res])ect  to  two  material  ]>oints,  viz.,  the  habits  of  Winsliip, 
and  the  per.son  by  whom  the  li(pior  was  sold  to  him.  AVitli  re- 
gard to  "Winship,  it  nuiy  be  observed  that  tlie  evidence  slmws 
him  to  have  been  a  substantial,  industrious,  well-to-do  farmer, 
living  some  distance  from  town,  of  somewhat  bibulous  appetite, 
who,  when  in  town,  was  occivsionally  given  to  excess,  but  not  to 
such  a  dci^ree  as  to  nuiteriallv  interfere  with  his  tlirift,  prudence 
or  pros]M;rity.  The  evidence  tliat  lie  was  "in  tlie  habit  of  get- 
ting intoxicated,"  is  not  very  clear  or  satisfactory;  but  as  the 
appell.ant,  as  will  Ije  shown  liereafter,  treated  liim  as  a  ])erson  in 
the  habit  of  getting  in  tliat  condition,  ])erhaps  more  from  tlie 
peculiar  character  of  the  times  than  from  the  actual  liabit:-  of 
the  man,  we  pass  this  point  in  the  case  without  further  observa- 
tion. 

AVe  come  to  the  other  question:  AVas  it  shown  that  the  aj)pel- 
lant  sold  the  liquor  to  "Winshipi! 

The  appellant,  it  a])peared,  procured  his  permit  January  31st, 
1874.    George  M.  P»arrlck,  on  whose  affidavit  the  prosecution 


i 


LATHllOPE  V.  STATE. 


469 


.N 


] 


1  testified 
'used,  for 


f  the 


cir. 


>i/  sciraiit. 

ii.|uor  l)y  liU 
)ii  of  iio.-<itive 


the  act  of 
ii'ch,  ls74, 
tlie  ]ial)it 
jury;  con- 
3nt. 

'  (lofoctivc 
AViiisliip, 
With  ro- 
ll ce  .sliows 
h)  farmer, 
s  appetite, 
l)Ut   Hot  to 
.  i>ru(leii('e 
l>it  of  p't- 
l>nt  as  the 
]>ers(iii  ill 
from  tlie 
I  liahit:-  of 
;r  oltserva- 

the  ajjpel- 

inary  31st, 
rosecutioa 


was  institvxted,  was  sworn  as  a  witness,  and  testified  in  respect  to 
the  selling  as  follows: 

"Know  Henry  Lath  rope;  that's  hiin;  ]<now  Ilezin  AVinship; 
Known  him  for  fifteen  years.  I  saw  j\[r.  Itezin  "Winshlp  in  J^a- 
thrope's  saloon,  on  the  14th  day  of  Mareh,  1S74;  about  that 
time.  I  saw  liini  purchase  into.\icatiii<^  li(|uor  there  on  that  day. 
It  was  lager  beer,  it  is  intoxicating;  lie  paid  for  that;  I  think  he 
gut  it  of  Albert  Ilandels;  I  may  be  mistaken,  I  won't  say  ])osi- 
tive;  my  recollection  is  it  was  llandels;  ho  was  clerking  for  La- 
thrope  in  his  saloon;  he  paid  for  that  lifpior;  Henry  Lathropo 
was  in  the  saloon  somewhere,  in  Warsaw,  Kosciusko  county. 
He  drank  it  out  of  a  beer  tumbler  off  the  counter."  On  cross- 
examination,  he  said: 

"On  or  about  the  14rtli  day  of  Alarcli;  it  was  on  the  14th,  if 
you  must  have  it  that  day;  I  put  it  down  in  the  book;  I  have  it 
with  me;  I  put  it  down  on  the  14th;  I  wanted  to  recollect  it;  it 
was  my  business,  walking  around  to  see  if  they  were  selling  liq- 
uor in  violatioti  of  law;  they  did  not  say  anything  about  iny  fil- 
ing idHdavlts;  I  did  not  ask  him  who  I  was  to  get  my  pay  from; 

J AV hired  me  and  paid  me;  five  days  I  worked;  that 

is  the  only  time  I  saw  him  take  a  drink  in  there;  was  not  in 
there  drinking  beer  every  day;  I  drank  in  there  three  glasses  of 
beer;  I  would  go  in  and  stay  two  or  three  minutes  at  a  time. 
'"    *    I  wanted  to  earn  my  money;  I  reported  the  violation  to 

Mr.  AV ;  can 't  remember  who  it  was  that  drank  with  him. 

I  don't  know  whether  I  swore  before  l^utes  that  Lathrope  was 
not  there;  I  would  not  be  certain  as  to  what  I  swore  yesterday; 
would  not  swear  positively  that  Lathrope  was  there,  but  think 
he  was  some  ])lace  in  the  room." 

This  was  the  only  evidence  in  the  case  in  relation  to  the  sell- 
ing, except  that  to  be  hereafter  noticed. 

Hiram  F.  I>erst  testified,  that  he  had  seen  AVinship  in  the  ap- 
pellant's saloon  since  he  got  his  permit,  drinking  lemonade;  that 
he  asked  for  beer,  but  this  was  refused  by  Lathrope. 

Austin  C.  Funk  testified,  that  he  had  known  AVinship  for 
twenty  years,  had  seen  him  atLathrope's  saloon  trying  to  get  liq- 
uor, but  that  the  latter,  since  he  received  his  permit,  invariably 
refused  to  let  him  have  it. 

AVinship  testified  as  follows; 

"  I  have  not  bought  any  liquor  of  any  kind  of  Henry  Lathrope, 


470 


AMKinCAN  CIII.MINAL  RKI'OIITS. 


i  a 


or  ill  his  presence,  since  he  liiis  l»eeii  M-Uiiii;  ui.<ler  liin  ii(>riiiit. 
l.atlirniH!  refused  me  every  time  I  tried  to  get  imy;  I  have  never 
gut  any  there,  except  what  I  gut  that  day  of  llandels;  did  imt 
see  nnytliing  of  Latlirope  in  tlie  huilding;  ho  was  in)t  tliere  to 
my  iinttwledge;  lie  might  possibly  have  heea  in  tlie  building', 
bnt  if  ho  was,  I  did  not  see  him." 

llandels  testitied: 

"  Henry  Lath  rope  gave  me  instructions  M'hen  1  commenced 
clerking  for  l»im,  not  to  sell  any  liijnor  of  any  kind  to  Koziu 
AVin ship,  and  frequently  since,  he  has  given  me  the  same  instnie- 
tions." 

The  ap])ellant  testitied  on  his  original  examinati(»n  as  foUuwi;; 

"I  know  Kezin  Winshij).  I  got  jny  ])ermit  on  the  Olst  day 
of  ilanmiry,  l!S74;  I  refnsed  to  let  him  have  any  li(jUor  immedi- 
ately afterwards  on  his  lirst  ap]»lication,and  have  always  refiiM'd 
him  since  that  time;  I  have  not  sold  him  a  drop  of  anythinii:  ex- 
cept lemonade  since  getting  my  ])ermit,  and  he  has  never  got  a 
drop  of  IJandels  to  my  knowledge." 

The  cross-examination  develoiyed  nothing  material,  except  tliiit 
the  appellant  had  given  Kandels  directions  not  to  sell  to  Win- 
ship. 

An  examination  of  this  evidence  satisfies  ns  that  the  convic- 
tion cannot  and  ought  not  to  be  sustained.  It  is  apparent  that 
the  appellant  was  trying  to  keep  within  the  law.  lie  refusal 
to  sell  to  Winshi]),  and  gave  orders  to  his  clerk  not  to  sell  to  him. 
Though  it  is  questionable  M'hether  AVinship  sluMild  be  regarded 
as  a  person  in  tlie  habit  of  getting  intoxicated,  yet  Lathroiic, 
thinking  doubtless,  that  it  would  be  ]»rudent  and  safe  not  to  sell 
to  him,  acted  accordingly.  If  llandels  sold  to  him  without  tlio 
knowledge  and  against  the  instructions  of  Lathro])e,  the  latter  is 
not  res])onsible  criminally  for  the  act.  (//.cifr;/  r.  T/ic  >S7(//( , 
44  Ind.  t>l,  and  the  cases  there  cited;  Wi'thlt  r.  jyic  Sf<ff,\ -iS 
id.,  570.  The  tendency  of  the  evidence,  that  of  l>arri(dv  ])or- 
haps,  exce])ted,  is  to  show  tliat  the  lic^uor  was  sold  by  Il;indels, 
without  the  knowledge  or  consent,  and  against  the  ex]>ress  in- 
structions of  Lathrope.  The  witness,  l>arrick,  does  not  ap])ear 
in  a  very  enviable  light  —  a  hired  spy  and  voluntary  informer, 
he  came  before  the  court  exhil»iting(pialities  calculated  to  throw 
suspicion  upon  his  testimony. 

On  liis  examination  in  chief,  he  fixed  the  time  of  the  supposed 


^ 


I-'   itcriiiit. 

lavc  never 

<litl   iKit 

•t   there  to 

IniiMiier 


ollUllC'IiCC'tl 

no  iiisti'iic- 


follows; 

'    ol.st  (liiy 

»r  iniiiiedi. 
lys  refused 
yfliiiiij  e\. 
lovei-  i;(.t  a 

JXt'Opt  tllJlt 
11    to  Will. 

the  c'diivic- 
areiit  that 
If  refiiseil 
t'll  to  him. 
c  rt'ifanled 
Latlirope, 
not  to  sell 
itliout  tlio 
le  hitter  is 

Sifft,',  4S 
rrick  por- 
y  liajidels, 
'C])ress  iii- 
ot  ai)])ear 
iiiforiiicr, 
I  to  throw 

eiipposod 


MtCL'TCIIKON  i:  PKOl'LE. 


471 


olVeiisc  as  the  Utli  of  Mnrcli,  1S74  —  ahout  that  time.  On  cross- 
ixaiiiiiiutloii,  ho  rcpc'titt'd  tliiit  it  was  on  or  about  the  14th  of 
March;  1)ut  if  it  was  uu  that  dry,  and  he  knew  it,  liaving  j)ut  it 
down  in  the  Ixtok,  M-hy  did  ho  not  say  so  in  the  first  place,  and 
not  make  the  time  indefinite  by  tlio  word  *' about,"  as  if  to  iriuird 
nj,'ainst  continfj;encies'J  He  could  not  remember  who  it  was  that 
drank  with  "Winship.  It  would  seem  tha:  liis  business  and  jmr- 
j)ose  sh(»idd  have  Impressed  so  material  a  matter  upon  his  inenj- 
(iry.  I»nt  his  lack  of  niemory,  eitlier  real  (»r  simulated,  waa 
reuuirkable;  for  ho  said  that  he  di<l  not  know  wliethcr  lie  sworo 
before  Lutes  that  Lathropo  was  not  there;  that  ho  would  not  be 
certain  as  to  what  lie  swore  yesterday.  On  his  examination  in 
chief,  he  said  that  Lathrope  was  in  the  naloon  somewhere  when 
the  li(pu»r  was  purchased;  but  on  the  cross-examination,  he  said 
ho  would  not  swear  positively  that  Lathrope  was  there,  but 
thought  hcM'as  some  place  in  the  room.  The  result  of  his  testi- 
niony  in  respect  to  the  ]»resence  of  Lathrope  when  the  liipior  was 
fold  is,  that  he  did  JU)t  know,  but  thoUi,dit  he  was  there  in  the 
room,  lie  does  iu)t  profess  to  have  seen  him  there.  Indeed,  if 
he  ha<l  seen  him,  he  would  have  fixed  his  locality  in  the  room 
nmre  definitely  than  "some  place  in  the  room."  Xor  did  he  as- 
sii-'U  any  reason  why  he  thought  Lathrope  was  there.  The  wit- 
ness did  not  know,  but  simply  thought  that  Lathrope  was  there, 
no  reasun  being  assigned  for  thinking  so.  This  evidence  would 
not  be  sullicient  to  justify  a  recovery  in  a  civil  action,  where  the 
question  depended  upon  the  presence  (jf  Lathn.ipe,  much  less  u 
conviction  in  a  criminal  one. 

The  case  was  not,  in  our  opinion,  nuide  out,  there  having  been 
no  sulKcient  evidence  that  the  liquor  was  sold  with  the  Irnowledgo 
or  consent  of  Lathrope. 

The  jiulgment  below  is  reversed,  and  the  cause  remanded  for 
a  new  trial. 


McCltoukon  vfi.  Pkoit.k 
(09  111.,  601.) 


LiQUOn  Sklmno:     ImVictmeut  —  JicymnslhUitij  of  rDijihi/er  for  imauthorhcd 
act  of  servant — Statiitor//  conntnwthn. 

In  a  prosecution  for  an  illejjral  sale  of  liquor  to  a  minor,  it  i.s  not  necessary  tliui 
tho  indictment  should  alleye  that  the  defendant  knew  that  the  purchsiiier 
was  a  muior. 


i 

,  i 

• 

472 


AMERICAN  CRDilXAL  RI-TOHTS. 


In  a  prosecution  for  an  illegal  sale  of  liquor  to  a  minor,  it  is  inniuili'riiil  wIicUht 
or  not  tho  ilofendant  knew  that  the  purohastn-  was  a  minor.  ^\'.\lJvl■;u  ami 
WcAij,iSTKK,  JJ.,  dissenting. 

Under  a  li(iuor  statute  which  prohihits  all  sales  of  liipioi-s  hyunlieensed  persons, 
an  employer  is  criminally  ri'sj>onsil  ile  for  all  unlawful  sales  made  1  ly  his  iigeut. 
The  agent  has  no  license  to  sell  to  any  one,  and  it  is  only  lawful  for  hna  to  il.) 
so  in  the  nauK!  and  Ity  the  autliority  of  his  principal,  and  the  presuiuiition 
nuist  he  deemed  conclusive  that  the  agent  oi  .servant  acts  within  the  scop,) 
of  his  authority  in  making  the  side. 

Altliough  it  i«  generally  true  thiit  where  the  legislatmv  adopt.-  .sulistautially  the 
statute  cf  another  state,  it  is  presun»ed  to  adopt  also  the  coavtructien  previ- 
ously given  to  it  by  tiie  courts  of  that  .state;  yet  the  legislature  will  not  be 
presumed  to  lu'.ve  adopti'd  such  construction  where  such  constnict.ion  is  in- 
consistent .vith  tlie  spirit  and  iiolicy  of  the  laws  of  the  state  adopting  tin; 
statute. 


Scorr,  J.  This  was  an  iiulictiueiit  found  ugainst  ]>laiiitiil'  in 
error  for  unlawfully  selling  intoxicating  liquors  to  a  minor  with- 
out the  M'ritten  order  of  his  parents,  guardiaji  or  family  physi- 
cian, contrary  to  the  form  of  the  statute.  The  intlictment  was 
certified  to  the  county  court,  where  a  trial  was  had  and  the  ac- 
cused found  guilty,  and  upon  an  ajijwal  taken  to  the  circuit  court, 
the  judgment  was  athrmed.  A  motion  was  made  in  the  county 
court  to  (jua.sh  the  indictment,  for  the  reason  it  was  not  averred 
the  acciP-ed  knew  Jay  Porter,  to  whonj  it  is  alleged  the  intoxi- 
cating liquors  were  sold,  was  then  a  minor.  The  decision  of  tlio 
court  overruling  the  motion  to  quash  the  indictment  is  assigned 
for  error. 

This  ])rosecution  was  coniTnenced  under  the  second  section  of 
the  act  of  1ST2,  in  relation  to  the  sale  of  intoxicating  liipiors, 
which  provides,  "it  shall  be  unlawful  for  av.y  ])erson  or  per.<oiis, 
by  agent  or  otherwise,  to  sell  intoxicating  liquors  to  minors,  un- 
less upon  the  written  order  of  their  parents,  guardians  or  family 
physicians,  or  to  persons  intoxicated,  or  who  are  in  the  habit  of 
getting  intoxicated."     Session  Laws,  187:2,  p.  55;'>. 

The  indictment  is  substantially  in  the  language  of  the  statute. 

This  section  makes  it  absolutely  uidawful,  notwithstanding 
the  party  may  have  a  license  obtained  under  the  provisions  of  tho 
first  section  of  the  act,  to  sell  intoxicating  liquors  to  minors,  un- 
less upon  the  written  order  of  the  parents,  guardians  or  family 
physicians,  and  contains  an  absolute  restriction  upon  selling  such 
liquors  to  persons  intoxicated,  or  who  are  in  the  habit  of  getting 
intoxicated. 


riiil  wlicthcr 
Ai.KKU  and 

il  Ii'^rsniis, 
ly  his  iijf.'ut. 
n-  Iinu  tod.) 
nt'-uiiiptiou 
II  thi;  scojio 

imti;dly  the 

utidii  in't'vi- 

will  not  be 

■i.iiiu  is  in- 

doptiii^'  tlw 


iiintill'  ill 
iu.>r  witli- 
ily  pliysi- 
iiiont  was 
(1  tlio  ilC- 
nit  court, 
le  county 

10  intoxi- 
oii  of  tin; 
i  iiosigiietl 

section  of 
^  li(juor>, 
;•  persons, 
iiors,  un- 
or  family 
liul)it  of 

e  statute, 
istaniliny; 
)ns  of  tlio 
inors,  un- 
»r  fiuuily 
llnij;  sucii 
>f  getting 


McCUTCHEON  v.  PEOPLE. 


473 


It  is  claimed  the  indictment  is  fatally  defective,  inasmuch  as 
it  fails  to  aver  defendant  knowingly  sold  lic^uors  to  a  minor.  It 
is  insisted  guilty  knowledge  is  absolutely  necessary  to  constitute 
the  offense,  and  unless  the  i^clenter  is  averred,  it  cannot  he  proved 
on  the  tried.  The  principal  .luthority  relied  on  in  support  of  this 
•|)roposition  is  the  case  of  Miller  v.  The  People,  3  Ohio  St.,  475. 
This  section  of  our  statute  is^  no  doubt,  a  substantial,  if  not  a 
literal,  copy  of  the  Ohio  statute  on  the  same  subject,  and  in  con- 
struing it  in  JIillc/'''s  Cane,  the  court  said,  "  to  convict  for  a  vio- 
lation of  the  second  section,  it  is  necessary  to  aver  in  the  infor- 
mation, and  prove  on  the  trial,  that  the  seller  knew  the  buyer  to 
be  a  minor." 

Having  adoj)tod  the  statute  of  a  sister  state,  it  is  claimed  the 
legislature  adopted  also  the  construction  previously  given  it  by 
the  courts  of  that  state.  The  rule  on  this  subject  is  stated  as  we 
understand  it  in  Streeter  v.  The  People.,  G!)  111.,  505.  The  doc- 
trine as  there  announced  is,  that  where  the  legislature  adopts 
substantially  the  statute  of  another  state,  it  is  presumed  to  adopt 
also  the  construction  previously  given  it  by  the  courts  of  that 
gtate,  unless  such  construction  is  inconsistent  with  the  spirit  and 
policy  of  our  laws. 

The  construction  given  to  similar  language  in  the  Ohio  statute 
cannot  but  be  regarded  as  being  inconsistent  with  the  spirit  and 
policy  of  our  laws,  and  therefore  no  presumption  prevails  that, 
in  adopting  it,  the  legislature  also  adopted  the  construction  that 
had  previously  obtained  in  that  state.  By  our  laws,  every  in- 
dictment or  accusation  of  the  grand  jury  shall  be  deemed  suffi- 
ciently correct  which  states  the  ofi'ense  in  the  terms  and  lan- 
e'ua"e  of  the  criminal  code,  or  so  plainly  that  the  nature  of  the 
offense  may  be  easily  understood  by  the  jury.     II.  S.  18-1:5,  p.  ISl. 

Since  the  adoption  of  this  statute,  it  has  uniformly  been  held 
it  was  not  necessary  to  do  more  than  state  the  accusation  in  the 
]ani:;uage  of  the  statute  creating  the  offense.  AVhen  the  intent 
is  mentioned  as  ati  element  of  the  offense  created  by  law,  it 
ou'dit  to  be  allesred;  but  when  it  is  silent  as  to  motive,  no  intent 
need  be  aver  xl  in  die  indictment. 

The  case  of  KlU  v.  The  People,  4  Scam,  509,  was  an  indict- 
ment for  "harboring  and  secreting"  a  slave. 

It  was  contended  defendant,  to  be  guilty  of  the  offense,  must 
Lave  had  knowledge  of  the  fact  that  the  person  harbored  or  secreted 


J 


I ., 


474 


AMERICAN  CRIMINAL  REPORTS. 


,:,   \' 


was  at  the  time  a  slave,  and  that  this  knowledge  should  he  averred 
in  the  indictment  and  proved  on  tlie  trial. 

It  was  held,  however,  in  such  an  indictment  it  was  not  ncccs- 
pary  to  alle<»e  a  .n'ii'nttr.  Tli?  court  commented  on  the  case  oi: 
Jiirney  v.  The  Pcojtle,  S  Oliio,  L*oO,  njKin  the  authority  of  wliicli 
tlie  case  of  2[iUe)'  v.  Pci>2>le,  aujji'a,  was  decided,  ;ind  exprcsplj 
disapproved  of  the  doctrine  there  announced. 

The  case  of  Cunmuhf  v.  The  People^  17  III.,  15S,  was  an  in- 
dictment  for  selling  spirituous  lic^uors  in  less  quantities  than 
one  gallon.  The  general  averment  of  an  illegal  sale  was  iicld 
sufiicient,  the  court  saving  these  ijreat  niceties  and  strictness  in 
pleadings  sliould  only  he  countenanced  when  it  is  apparent  de- 
fendant may  he  surprised  on  the  trial  or  nnahle  to  meet  tlie 
charge,  and  l)€yond  this,  particularity  of  specification  might  fin-- 
nish  a  ]neans  of  evading  the  law  rather  than  defending  ag:iiii>t 
accusation.  To  the  same  effect  is  Morton  v.  27ie  J'e'>jJr,  47 
111.,  40S. 

In  view  of  onr  statute,  which  makes  it  sufiicient  to  set  forih 
the  offense  in  the  indictment  or  informaticui  in  the  language  of 
the  act  creating  it,  or  so  ])lainly  that  the  nature  of  the  accusation 
can  he  rea<lilv  understood,  and  of  the  niuform  construction  iriveii 
to  it  hy  our  decisions,  it  can  hardly  he  said  the  legislat\ire.  in 
adopting  the  statute  of  another  state,  intended  also  to  a<lo]it  a 
construction  in  direct  antagonism  with  our  laws,  and  in  eoutlict 
with  the  practice  that  has  prevailed  under  them  tlirough  a  long 
series  of  years.  It  is,  at  most,  a  presumption,  and  is  repelled 
when  we  reuiemher  the  ctuistruction  contended  for  had  ])een  dis- 
approved hy  this  C(»urt  long  prior  to  the  eiuictment  of  the  law 
Tinder  consideration,  upon  the  ground  it  was  inconsistent  with 
our  laws.  The  presumption  should  rather  he  indulged  that  the 
present  statute  was  enacted  in  view  of  the  existing  laws  a>  con- 
strued hy  former  decisions  of  this  court.  The  latter  is  the  more 
reasonahle  ])resumption,  and,  we  think,  should  he  adopted,  as 
being  more  c(»nsistent  with  the  spirit  and  policy  of  our  laws. 

Inde))endently  of  the  (piestion  wliether  it  is  necessary  to  allege 
a  scienter  in  the  indictment,  it  is  insisted  the  act  of  selling  in- 
toxicating liipiors  to  a  minor  is  not  itself  made  punisliahle  hy 
the  statute  unless  the  seller  knew  at  the  time  the  hnyer  was  a 
minor.  AVe  caimot  concur  in  this  view  of  the  law.  The  liceuf-e 
procured  under  the  first  section  of  the  act  confers  no  authority 


McCUTCIIEOX  r.  PEOPLE. 


475 


l>e  avciTcd 

not  iieecs- 
ilit)  case  ot 
y  of  wl  I  it'll 

t-.\pi'css]y 

vas  an  in- 
titics  than 

wa.s  liflil 
rictness  in 
parent  (K'- 

nu'ct  tlio 
nup^d  fnr- 
11^'  aii'ainst 

)  set  forlli 
ini,niai;c  (if 
accusatinii 
'tinn  given 
slatiire.  in 
to  a<l(>])t  a 
in  eoiillict 
ii,^li  a  lon^' 
•s  repeileil 
1  been  dis- 
>f  the  law 
•stent  with 
il  tliat  the 
^v.s  a.-^  emi- 
i  the  more 
Inpted,  as 
•  laws. 
y  to  alle:,'e 
'ellini,''  in- 
sliahle  liy 
lyer  was  a 
lie  lieenf-e 
antJKjrity 


on  the  licensee  to  sell  iutoxieatino-  liquors  to  a  minor,  except  upon 
one  condition,  viz.:  he  shall  have  the  written  order  of  his  par- 
ents, guardian  or  family  physician,  lie  is  absolutely  ])rohibited, 
by  the  same  section,  from  selling  to  a  person  intc/xicated,  or  who 
is  in  the  habit  of  getting  intoxicated,  and  his  license  will  attbrd 
him  no  ju-oteetion.  The  law  imposes  npon  the  licensed  seller 
the  duty  to  see  that  the  j)arty  to  whom  ho  sells  is  authorized  to 
buy,  and  if  he  makes  a  sale  without  this  knowledge,  he  docs  it 
at  Ills  peril.  This  is  the  clear  meaning  of  the  law,  and  any  other 
construction  would  render  it  exceedingly  difiicult,  if  at  all  pos- 
sible, ever  to  procure  a  conviction  for  u  violation  of  this  clause 
of  file  statute.  This  construction  imposes  no  hardship  upon  the 
licensed  seller.  If  he  does  not  know  the  i)arty  who  seeks  to  buy 
intoxicating  li(piors  at  his  counter  is  legally  competent  to  do  so, 
he  must  refuse  to  make  the  sale.  It  is  made  unlawful,  either 
with  or  without  a  license,  to  sell  to  a  certain  class  of  persons,  and 
to  another  class  except  under  certain  conditions;  and  if  he  vio- 
lates either  clause  of  the  statute,  he  must  sutter  the  penalties 
imposed  for  its  violation. 

It  is  no  answer  to  this  view  to  say  the  licensee  may  sometimes 
1)C  imposed  npon  and  made  to  suffer  the  penalties  of  the  law, 
when  he  had  no  intention  to  violate  its  provisions.  This  is  a 
risk  incident  to  the  business  he  has  undertaken  to  conduct,  and, 
as  he  receives  the  gains  connected  therewith,  he  must  assume 
also  wi'h  it  all  the  hazards.  Our  laws  make  it  a  crime  for  a 
man  to  have  carnal  intercourse  with  a  female  iinder  a  certain 
age,  either  with  or  without  her  consent.  It  would  shock  our 
sense  of  justice  to  hold  a  party  not  g-iilty  because  he  did  not 
know  she  was  within  that  age  prescribed  by  the  statute,  and 
therefore  incapable  of  giving  consent.  The  law  makes  the  act 
a  crime,  and  infers  the  guilty  intent  from  the  act  itself. 

Tlie  case  of  7»(.'  Conniuuniudlth  r.  Juiiino/h^,  09  Mass.,  fi,  was 
a  prosecution  against  a  kee])er  of  a  billiard  room,  for  admitting 
a  minor  thereto  without  the  consent  of  the  parent  or  guardian. 
It  was  held  it  was  not  needful  to  aver  or  prove  guilty  intent  of  de- 
fendant, and  that  he  admitted  such  persons  to  his  room  at  his  peril. 

In  [Jlr'K-h  r.  Coiiimouii\(/h/i,  (5  Bush  (Ky.),  400,  under  in- 
dictment for  selling  li<piors  to  a  minor,  it  was  held  it  was  as  in- 
cumbent on  the  vendor  to  know  that  his  customer  labors  under 
disability  as  it  is  for  him  to  know  the  law. 


470 


AMERICAN  CRIMINiU.  RErORTS. 


i'.f' 


The  State  v.  JIartjiel,  24  "Wis.,  60,  was  also  an  iiulictnient  for 
selling  li(|uors  to  a  minor.  It  was  held  it  was  an  oii'enso  under 
the  statutes  of  that  state,  notwithstanding  the  vendor  did  nut 
know  the  pnrchaser  was  a  minor. 

Jjarnes  v.  The  State,  10  Conn.,  397,  v>'us  a  prosecution  for  sel- 
ling liquors  to  a  common  drunkard,  and  to  sustain  the  ])rosecution, 
it  was  declared  not  to  be  necessary  to  prove  defendant  knew  the 
person  to  whom  the  liquors  had  been  sold  was  a  comniun 
drunkard. 

The  evidence  shows  conclusively  that  Jay  Porter,  at  the  time 
lie  purchased  intoxicating  liquors  at  the  counter  of  defendant, 
was  a  minor,  and  that  he  had  no  written  order  from  either  of 
his  parents,  guardian  or  family  physician.  Whether  appellant 
knew  he  was  a  minoi*,  in  the  view  we  have  taken  of  the  law,  is 
wholly  immaterial.  It  was  his  business  to  know  whether  lie 
could  lawfully  sell  to  him.  We  do  not  deem  it  a  material  in- 
quiry \\hether  the  sale  of  the  li<piors  in  this  case  was  made  l)y 
appellant,  his  agent  or  servant.  In  either  case,  the  principal  is 
guilty,  within  the  meaning  of  the  statute,  and  is  liable  to  tlio 
penalties  it  imposes.  The  agent  had  no  license  to  sell  to  ui>y 
one,  and  it  is  only  lawful  for  him  to  do  so  in  the  name  and  by 
the  authority  of  his  principal,  and  the  presumption  must  be 
deemed  conclusive,  that  the  agent  or  servant  acted  within  tlio 
scojie  of  his  authority  in  making  the  sale. 

The  instructions  given  at  the  trial  are  not  so  variant  from  the 
principles  announced  in  this  opinion  as  to  have  misled  the  jury. 
The  fourth  instruction  may  have  been  wrung  in  its  jdiraseology, 
but  it  is  not  perceived  how  it  could  have  worked  any  injury  or 
prejndice  to  plaintilf  in  error. 

.^o  error  appearing  that  could  aft'ect  the  merits  of  the  cause, 
the  judgment  is  affirmed.  Jaihjvient  ajfirtiud. 

Mr.  Justice  Craig,  having  been  counsel  for  the  defendant  in 
the  court  below,  took  no  part  in  the  consideration  of  this  case. 

Mr.  Justice  Walkku  and  Mr.  Justice  JMoAi.listkk,  dissenting: 
We  are  of  opinion  that  while  it  is  not  necessary  to  aver  guilty 
knowledge  in  the  indictment,  under  our  statutory  rule  that  an 
indictment  is  sullicient  which  charges  a  statutory  oU'ense  in  the 
language  of  the  statute,  it  is  nevertheless  necessary  to  prove 
8uch  guilty  knowledge  on  the  trial.    The  statute  is  but  a  copy 


IM: 


tiiient  for 
use  under 
r  iliil  iiut 

)n  fi)r  sul- 

Ltseciition, 

knew  the 

coiniuuu 

the  time 

efeiuliuit, 

either  of 

appelhmt 

lie  huv,  is 

h ether  lie 

iteriiil  iu- 

i  uuulc  liy 

•iucipiil  is 

1)le  to  the 

pll   to  iiny 

no  iiiul  by 

iimst  he 

•itliiii  tlio 

from  tlio 

the  jury. 

"iiseoloiiy, 

injury  or 

;lie  cause, 

ajfiriiitd. 

iiidiuit  in 
is  case, 
ssentini,': 
•er  1,'uilty 
e  tluit  an 
ise  in  the 
to  prove 
it  a  copy 


BALL  V.  STATE. 


477 


of  the  Ohio  statute,  whicli  the  courts  of  that  state  had,  long  an- 
terior to  its  adoption  here,  given  such  a  construction  to  as  wo 
contend  for.  The  presuni])tion  is,  that  the  legislature  adopted 
it  with  the  construction  so  given,  and  intended  that  the  essential 
element  of  guilty  knowledge  or  intent,  which  is  the  essence  of 
every  crime,  should  enter  into  that  here  defined. 


Ball  m.  Statk. 

(50  Ind.,  595.) 

LiQUon  Sellino:    Good  faith  in  selling  liquor  to  minors. 

A  druggist  selling  liquor  to  a  minor  on  a  physician's  prescription  in  good  faith, 
that  it  is  to  be  usi.'d  for  medicinal  puii)Oses,  is  guilty  of  no  otleuae.  Ho  is  as 
much  shielded  1)y  the  spirit  of  the  act  as  if  he  were  exempted  from  tlie  pen- 
alty by  expix'ss  words. 

Biddlt:,  C.  J.  Prosecution,  hy  affidavit  and  information, 
against  tire  appellant,  for  selling  intoxicating  liquor  to  Albert 
G.  XaA'lor,  a  minor.  A  motion  to  quash  the  proceedings  was 
properly  overrultKl,  and  needs  no  further  nf>tice. 

The  ai)pellant  pleaded  not  guilty,  was  tried  by  a  jury,  convicted 
and  lined. 

The  evidence  and  instructions  are  properly  before  us,  and 
errors  regularly  iva.signed  questioning  their  validity. 

AJhert  G.  Niojlor  testiiied:  "  My  name  is  Albert  G.  Naylor; 
am  going  to  school  at  AV^avelantl;  live,  when  at  home,  at  Terre 
Haute;  1  got  liquor  from  the  defendant  which  was  intoxicating; 
got  it  for  medicinal  purposes;  the  liquor  I  got  was  called  'War- 
ner's English  giu,'  i)ut  u])  in  sealed  bottles;  I  got  tlie  liquor  on 
the  2d  day  of  May,  1S73,  took  it  to  my  room  at  uiy  boarding 
house,  and  got  intoxicated  on  it  on  the  3d  of  May;  I  told  the 
defendant,  when  I  first  went  to  him,  I  wanted  it  as  a  medicine; 
he  refused  to  let  me  have  it;  I  then  went  to  Dr.  Steele,  after 
seeing  him;  I  took  a  prescrij)tion  from  tlie  doctor  to  Mr.  Ball 
(defendant);  on  the  ])rescription,  I  got  the  gin;  I  am  sixteen  years 
old." 

On  behalf  of  the  defense,  Dr.  A.  F.  Steele  testified:  "  I  am 
a  physician  engaged  in  a  general  i)ractice;  have  been  practicing 


478 


AMKRICAN  CRIMINAL  REPORTS. 


!<'<.■■ 


mm 

■M 


I  i 


sixteen  years  ut  Wivveland;  I  made  no  examiimtidu  of  Xaylor, 
but  made  the  i)rescri[)tioii  on  the  statement  lie  made  of  liis  con- 
dition, and  what  he  had  been  using  for  the  disease  before,  at 
Terre  Haute;  the  c:in  was  a  remedial  and  ]iroi)or  medicine  for 
the  treatment  of  the  di.sease  that  he  represented  to  me  he  was 
laboring  under."  (Prescription  sliown  him.)  '*  I  gave  this  pre- 
ecriptiim  to  young  ]S'aylor." 

The  defendant,  Zcphaniah  21.  Bull,  testified:  (Here  the  pro. 
scription  was  shown  and  read  to  the  jury:  "  ^[ay  I.  1^7:5.  li. 
p]nglish  gin,  one  bottle,  for  A.  (t.  Xaylor.  Steele.")  '"  The  pre- 
scription was  presented  to  me  by  j'oung  Mr.  Naylor;  he  came 
complaining  of  being  siek,  and  wanted  the  g  i,  and  T  told  him  I 
could  not  sell  it  to  him,  and  refused  to  let  him  have  it;  he  went 
away,  and  in  two  or  three  hours  aftei-wai'ds  ciinie  back  with  the 
doctor's  prescription;  I  then  let  him  have  a  buttle  of  gin;  it  is 
called  '  AV^arner's  English  gin,' and  comes  in  bottles  sealed  u]i, 
with  paper  covers;  this  gin  is  an  intoxiciting  liquor;  T  regarded 
tlie  prescription  of  Dr.  Steele  as  a  hona  fidi'  ])reserii)tioii,  and 
sold  the  ffin  to  voun<r  Xavlor  in  the  utmost  jrood  faith." 

Among  other  instructions  given  to  the  iurv.  the  court  trave 
the  following: 

*'  It  is  for  the  jury  to  determine  what  right  defendant  Hall 
liad  to  sell  liquor  to  a  miimr  on  the  prescrijition  of  a  ])hysi('iaii. 
The  defendant  I'all  cannot  shelter  himself  under  thi'  iirescrip- 
tion  of  Dr.  Steele,  even  if  the  defendant  sold  the  '  Knirlish  gin' 
to  this  minor,  on  the  prescription  of  Dr.  Steele,  in  ever  so  gf»od 
faith;  the  defendant  must  go  a  step  further;  he  mnst  follow  tlio 
article  sold,  and  see  that  it  is  not  used  for  any  other  ]>ur)((i-^o 
than  for  medicinal  purposes  by  such  minor.  And  if  the  minor 
afterwards  used  it  as  a  beverage  you  should  fitid  the  man  ir'iiltv." 

The  main  rule  in  construing  a  statute  is  to  give  rational  and 
practical  efiec^t  to  the  intejition  of  the  law  making  power.  All 
otlier  rules  fall  within  this  fixed  principle  of  jurisprudence.  A 
clause  in  a  statute  which  is  repugnant  to  the  general  act,  and 
cannot  be  construed  in  harmony  with  it,  must  be  held  inoperat- 
ive; so,  in  construing  a  statute,  all  effects  which  are  unnatural, 
absurd  or  unjust,  must  be  lield  as  implied  exceptions,  the  same 
as  if  they  were  expressed  in  words.  Tims,  the  law  menti(»ned 
by  Puft'endorf,  which  forbade  a  layman  to  "  lay  hands  on  a 
priest,"  was  held  to  extend  only  to  him  who  had  hurt  a  priest 


tlio  pro. 
1'lie  prc- 


BALL  c.  STATE. 


479 


ultli  a  weapon;  and  tlio  Uulugiiian  law,  also  from  Pi>.fit'iKU»rf, 
M-hich  enacted  that  "■  whoever  drew  blood  in  the  street  should  be 
piiiiLshed  with  the  ntinost  severity,''  was  held  not  to  extend  to 
the  surgeon  who  opene<l  a  vein  of  a  person  that  fell  down  in  the 
street  with  a  tit.  These  are  trite  examples,  but  very  apt.  Lhul- 
ley  i\  Bnuton,  27  Ind.,  5r.;  21ie  People  v.  Board  of  Coiainln- 
ifioiiers,  etc.,  3  Seam.,  153. 

The  intention  of  the  legislature  in  enacting  the  statute  of  Feb- 
ruary 27,  1873,  plainly  was  to  repress  intemperance,  and  more 
particularly  in  seetiuii  (>,  on  which  this  prosecution  rests,  to  pro- 
tect minors  from  the  seductions  of  the  bowl,  and  the  indiscreet 
use  of  intoxicating  drinks;  and  although,  in  its  terms,  the  act 
makes  no  exceptions  in  favor  of  druggists  or  physicians  in  sell- 
ing and  administering  intoxicating  liquors  when  necessary  for 
medical  uses,  yet  it  must  not  be  held  so  inexorable  as  to  override 
arid  destroy  other  rights,  and  prohibit  the  use  of  spirits  for  legiti- 
mate and  necessary  purposes,  which  are  e(jually  under  the  pro- 
tection of  the  law.  The  instruction  given  to  the  jury  by  the 
court  in  this  case  would  tend  to  prevent  parents  or  employers 
fntm  sending  minors  with  ])rescriptions  to  druggists  for  medi- 
cines which  might  happen  to  contain  intoxicating  liquor;  it 
Mould  embarrass  physicians  in  the  administration  of  medicinal 
remedies,  impose  im])racticable,  if  not  impossible,  duties  on 
druggists,  and  often  endanger  the  lives  of  patients.  We  cannot 
su])pose  that  the  legislature  had  any  such  intention  in  the  eiuict- 
iiieiit  of  the  law;  and  we  think  that  any  person  who  sells  intox- 
icating liquor,  on  a  proper  occasion,  in  good  faith  and  with  due 
caution,  for  medical  pur[)oses  oidy,  is  as  much  shielded  by  the 
spirit  of  the  act  as  if  he  were  exempted  from  the  pemilty  by  ex- 
press words.  In  this  view  we  are  fully  supj^orted  by  our  own 
authorities,  as  well  as  by  those  of  other  states.  Donnell  v.  The 
/Sfifti',  2  Tnd.,  G58;  27ioi/M.s.wii  v.  TJie  State,  15  id.,  i-tO;  Ilaher 
V.  'The  State,  lO  id.,  457;  and  J<de.'<  v.  The  State,  42  id.,  473. 

AVe  think  the  court  erred  in  giving  the  instructions  to  the 
jury,  and  that  the  evidence  is  insutlicient  to  sustain  the  verdict. 

The  judgment  is  reversed,  and  the  cause  rcnaanded,  with  direc- 
tions to  sustain  tlie  motion  for  a  new  trial,  and  for  further  pi'o- 
ceedings. 


ii 


480  AMERICAN  CRIMINAL  REPORTS. 

State  vs.  "Wuay. 

(72  N.  C,  25;].) 
LiQUOn  Seixino:    Good  faith  in  neUing  liquor  to  minor. 

A  druggist  selling  liquor  to  a  iiiinor  on  a  physiuiiin's  preseriiition  in  good  fnith 
that  it  in  to  be  used  for  medicinal  juirposes,  is  guilty  of  no  offense.  He  is 
as  mndi  shielded  by  the  spirit  of  the  act  as  if  he  were  exempted  fi'oni  the 
penalty  by  express  words. 

Settlk,  J.  Tlic  defendants  being  indicted  for  retailing  spirit- 
uous liquors,  without  r.  license  to  do  so,  the  jury  rendered  the 
following  special  verdict:  "The  defendants  were  druggists  and 
partners  in  the  town  of  Shelhy,  and  kept  medicines  for  sale,  hut 
had  no  license  to  retail  spirituous  liquors.  In  the  month  of 
July,  1872,  Dr.  O.  P.  Gardner,  a  practicing  physician  in  the 
town  of  Shelhy,  prescribed  the  use  of  a  half  pint  of  Freiu.'h 
brandy  for  ^[rs.  Durham,  the  wife  of  the  witness.  Hill  Durham, 
and  directed  the  witness  to  go  to  the  defendants  for  it;  that  Dr. 
Gardner  also  went  to  the  defendants  and  directed  them  to  let  the 
witness  have  the  said  brandy  for  his  wife  as  medicine.  The  wit- 
ness then  went  to  the  defendants  and  purchased  the  half  pint  of 
French  brandy,  and  his  wife  used  it  as  uiediciiie.  That  French 
brandy  is  a  spirituous  li(jUor;  that  it  is  also  an  essential  medi- 
cine, frequently  prescribed  l)y  physicians,  and  often  used,  and 
that  in  this  case  it  was  bought  in  good  faith  as  a  medicine,  and 
was  used  as  such." 

The  letter  of  the  law  has  been  broken,  but  has  the  spirit  of 
the  law  been  violated?  The  question  here  presented  has  been 
much  discussed,  but  it  has  not  received  the  same  judicial  deter- 
uiination  in  all  the  states  in  which  it  has  arisen.  In  this  conllict 
of  authority  we  shall  remember  that  the  reason  of  the  law  is  the 
life  of  the  law,  and  v.hen  one  stops  the  other  should  also  stop. 

"What  was  the  evil  sought  to  be  remedied  by  our  statute? 
Evidently  the  abusive  use  of  spirituous  liquors,  keeping  in  view 
at  the  same  time  the  resources  of  the  state.  The  special  vei-dict 
is  very  minute  in  its  details,  and  makes  as  strong  a  case  for  the 
defendants  as  perhaps  will  ever  find  its  way  into  court  aga^u, 
A  physician  i)rescribes  the  brandy  as  a  medicine  for  a  sick  lady, 
and  directs  her  husband  to  get  it  from  the  defendants,  who  are 
druffgists.     It  may  be  that  a  pure  article  of  brandy,  such  as  the 


M  Kood  faitli 
t'lisc.  He  is 
0(1  fi'oin  the 


ng  spirit- 

idered  tlio 

h'gists  iind 

r  sale,  l>ut 

month  of 

an  in  the 

of  Freiioli 

Durham, 

;  that  Dr. 

to  let  the 

The  wit- 

ilf  pint  of 

at  French 

tial  medi- 

used,  and 

Heine,  and 

1  spirit  of 
.  has  beuii 
i(;ial  deter- 
lis  eontlict 
law  is  the 
Iso  stop. 
ir  statute? 
tig  in  view 
lial  verdict 
ise  for  the 
urt  agaai, 

CD 

sick  lady, 
8,  who  are 
uch  as  the 


STATE  f.  WRAY. 


4m 


physician  was  willing  to  administer  as  a  medicine,  wa^  not  to  bo 
obtained  elsewhere  than  at  the  defendants'  drug  stoic  The 
doctor  himself  goes  to  the  defendants  and  directs  them  to  let  the 
witness  have  the  brandy  as  a  medicine  for  his  wife.  And  the 
further  fact  is  found,  which,  perhaps,  might  have  been  assumed 
without  the  finding,  that  French  brandy  is  an  essential  medicine, 
frequently  prescribed  by  physicians  and  often  \ised;  and  the 
farther  and  very  important  fact  is  established,  that  in  this  case 
it  was  bought  in  good  fai  ,n  as  a  medicine,  and  was  used  as  such. 
After  this  verdict,  wc  cannot  doubt  that  the  defendants  acted  in 
good  faith  and  with  due  caution  in  the  sale  which  is  alleged  to 
he  a  violation  of  law. 

In  favor  of  defendants,  criminal  statutes  are  both  contracted  and 
expanded.  1  Bish.  Cr.  L.,par.  201.  Now  unless  this  sale  comes 
within  the  mischief  whicli  the  statute  was  intended  to  suppress, 
the  defendants  are  not  guilty;  for  it  is  a  principle  of  the  com- 
mon law,  that  no  one  shall  suil'er  criminally  for  an  act  in  which 
his  mind  does  not  concur.  The  familiar  instance  given  by  lilack- 
stoiie  illustrates  our  case  better  than  I  can  do  by  argument.  The 
I'olognian  law  enacted  "  that  whoever  drew  blood  in  the  street, 
should  be  punished  with  the  utmost  severity.''  A  person  fell 
down  in  the  street  with  a  fit,  and  a  surgeon  opened  a  vein  and 
drew  blood  in  the  street.  Here  was  a  clear  violation  of  the  letter 
of  the  law,  and  yet  from  that  day  to  this,  it  has  never  been  con- 
sidered a  violation  of  the  spirit  of  the  law.  Perhaps  it  will  give 
us  a  clearer  view  of  the  case  if  we  put  the  druggist  out  of  the 
(piestion,  and  '.ujipose  that  the  physician  himself,  in  the  exercise 
of  his  professional  skill  and  judgment,  had  furnished  the  liquor 
in  good  faith  as  a  medicine.  Can  it  be  pretended  that  he  would 
be  any  more  guilty  of  a  violation  of  our  statute,  than  the  sur- 
geon was  guilty  of  a  violation  of  the  Bolognian  law  {  Wo  think 
not.  But  we  would  not  have  it  understood  that  ])hysicians  and 
druggists  are  to  be  protected  in  an  abuse  of  the  privilege.  They 
are  not  only  prohibited  from  selling  licjuor  in  the  ordinary  course 
of  business,  but  also  from  administering  it  as  a  medicine  unless 
it  be  done  in  good  faith,  and  after  the  exorcise  of  due  caution  as 
to  its  necessity  as  a  medicine. 

The  sale  of  liquor  without  a  license,  in  quantities  less  than  a 
quart,  is  prima  facie  unlawful,  and  it  is  incumbent  upon  one 
who  does  so  sell,  to  show  that  it  was  done  ui;der  circumstances 
Vol.  I.- 31 


4S2 


amp:rican  criminal  rei'okts. 


which  render  it  hvvvfnl.  In  this  case  wo  think  such  circuinstances 
have  been  shown,  and  we  concur  in  the  judgment  of  his  Honor, 
that  tlie  defendants  are  not  guilty. 

Per  Curiam:  JuJf/mcnt  ajjinacd. 


Marshall  vs.  State. 

(49  Ala.,  21.) 

LiQUon  SEiJiiNo:    Sale  to  minor — Barkcper. 

A  barkopppr  is  within  the  inoaninff  of  a  statute  iirohibitiny  any  peraon  who 
keeps  liquor  from  selling  it  to  niinci-s,  whether  ho  is  osvnier  or  merely  an  em- 
ployee. 

On  a  prosecution  for  selling  liquor  to  a  minor,  it  is  a  pood  defense  that  the  de- 
fendant was  misled  and  imposed  on,  and  that  he  honestly  believed  the  minor 
to  be  over  aye.  But  the  defendant  nmst  prove  this  Iwyond  a  reu.sonul)lu 
doubt. 

Saffold,  J.  The  ap])ellant  was  convicted  under  an  indictment 
for  selling  liquor  to  a  minor. 

A  harkceper,  whose  husiness  is  to  sell  fermented,  vinous,  or 
s])irituous  liquors,  is  within  the  meaning  of  R.  C,  §  3019,  which 
prohibits  any  person  who  keeps  these  liquors  from  selling  them 
to  minors,  etc.,  whether  he  owns  the  saloon  or  the  liquors,  or  is 
nierely  employed  to  sell  them. 

The  intention  of  the  accused  is  an  essential  ingredient  in  this 
offense.  But,  in  most  cases,  the  fact  is  conclusive  evidence  of 
the  intention.  AVhen  the  facts  which  constitute  the  offense  are 
proved,  the  Inirden  is  thrown  upon  the  defendant,  to  show  that 
lie  was  imposed  on.  In  this  instance,  he  was  allowed  to  prove 
that  the  minor  was  a  mature  looking  person,  whose  api)cari\nce 
was  calculated  to  produce  the  belief  that  he  had  attained  his  ma- 
jority. But  the  court  properly  refused  to  let  him  ask  the  wit- 
ness whether  he  would  not  take  him  to  be  over  twenty-one  years 
old.  lie  would  not  liave  liked  an  answer  against  him,  or  to  have 
had  a  favorable  answer  offset  by  the  o])inion  of  an  adverse  witness. 

Without  considering  separately  the  several  charges  given  and 
refused,  it  is  sufficient  to  say  the  court  erred  in  instructing  the 
jury  that  the  fact  of  minority  was  conclusive  of  the  intention  of 
the  defendant.     In  such  case,  the  burden  of  proof  is  on  the  dc- 


cunistiinces 
his  Honor, 


EISENJ[.\N  r.  STATE. 


4S3 


fentlivnt,  and  lio  must  pro\x'  his  goofl  intention  beyond  a  reason- 
alile  doubt.  Tlie  jury  nuisl  believe  tbat  he  was  honestly  and 
truly  milled  or  imposed  on.  Arithout  this,  the  law  would  be  of 
little  avail  for  the  protection  <.i  the  very  youth  for  whom  it  was 
intended,  to  wit,  those  ap|in»achin;;  nearly  their  majority. 
The  judgment  is  reversed,  and  the  cause  remanded. 


ly  1101-Hoii  who 
moivly  an  cm- 

so  tliat  the  ilo- 
!veil  tho  minor 
I  a  roasonuhlu 


indictment 

1,  vinous,  or 
3019,  which 
icllinj,'  them 
itpiors,  or  is 

lient  in  this 
evidence  of 
;  often  se  are 
o  show  that 
'ed  to  jirove 
appearance 
lied  his  ma- 
Jisk  the  wit- 
;y-one  years 
I,  or  to  have 
Tse  witness. 
3  given  and 
;ructing  the 
intention  of 
3  on  the  dc- 


ElSENMAN   vs.    StATK. 

(49  Ind.,  511.) 

Lujuoii  Sellino:    ScUliit/  liqimr  to  be  (li'iiiil-  on  preinlses  —  Eni/>lon, 

In  ii  iirosecution  for  soiling  li(inor  to  bo  drnnk  on  tho  pi-onu«on,  it  i^  not  neces- 
sary to  rtlloffo  in  tho  complaint,  or  to  provt!  on  tho  trial,  that  tin;  lienor  was 
ilnuik  on  the  promises  or  anywiioro. 

Tlie  I'act  that  dofondiuit  told  porsons  to  wliom  ho  isold  lirinor  that  thfy  must 
not  drink  it  on  his  promises  is  of  no  importance,  if,  under  the  circumstances, 
ho  nnist  have  known  tliat  they  would  th'ink  it  on  his  premises,  and  tlie  evi- 
done  in  this  case  is  held  sufficient  to  justify  the  conclusion  that  dt'fondant 
was  trjing  to  evade  tlie  law. 

DowxKv,  J.  Prosecution  against  the  appellant  under  the  act  of 
February  27,  187",  for  selling  intoxicating  liipior  to  one  Carter 
Loyd,  t(j  be  draidc  in  and  upon  the  premises  where  suld,  without 
a  jtormit,  commenced  before  a  justice  of  the  peace.  There  was  a 
conviction  before  the  justice  of  the  peace,  and  an  appeal  by  the 
defendant  to  the  circuit  court. 

The  prosecution  was  upon  an  affidavit,  a  motion  to  qnasli  Avhich 
was  made  in  the  circuit  court,  and  overruled. 

In  the  circuit  court,  the  cause  was  tried  by  the  court,  and  the 
defendant  was  again  found  guilty.  A  new  trial  was  asked  by  the 
defendant,  on  the  grounds: 

1.  That  the  finding  of  the  court  was  contrary  to  law;  and, 

2.  It  was  contrary  to  the  evidence. 

This   motion   was  overruled,  and   sentence  was  pronounced 
against  the  defendant, 
lie  has  assigned  for  error  here: 

1.  Overruling  his  motion  to  quash  the  affidavit. 

2.  Refusing  to  grant  a  new  trial;  and, 

3.  Rendering  the  final  judgment  against  the  defendant. 

The  objection  urged  against  the  affidavit  is,  that  it  does  not  al- 


I 


4S4 


AMKUICAN  CRIMINAL  RKI'itUTS. 


It'^o  tlmt  the  li(|Uor  was  drmikon  tlioju'einirto-*  where  it  \\i\>i  Hold, 
The  ])r()hll)ition  is  aj^iiinst  selling  tlie  iiitoxic.iitiiig  liriiutr  "to  Ik- 
drunk  in,  upon,"  etc.,  without  n  i)eniiit.  Sec.  1  of  tlie  act.  It 
Ih  not  nece8nary  to  the  eonipletion  (»f  tlie  otlensie,  that  the  liipior 
hIiuII  he  drunk  on  the  ]>reini[«ei*,  or  that  it  shall  he  (hMink  any- 
where.  The  ofiense  cousints  in  selling  it  to  he  drunk  on  the 
preniii-es,  without  the  reijuired  j)erniit.  The  allidavit  ullcgcs  a 
eale  of  thelitjuor  to  ho  drunk  on  the  ])rciuii*eri,  without  a  permit, 
and  is,  therefore,  Kulheient. 

Under  the  pecond  assignment  of  error  it  is  inpistiMl,  that  the 
evidence  does  not  show  that  the  li(pu>r  was  sold  to  he  di'uiik  en 
the  ]>renuses  where  sold.  "We  will  examine  the  evidence  and  sou 
what  it  does  ehow.  The  li<]^uor  charged  to  have  heen  sold  was 
beei'. 

Carter  Loyd  testified  as  follows:  "I  never  bought  any  li.|ii(ir 
of  defendant  —  no  wine,  nor  heer,  nor  whisky,"  etc. 

William  II.  Isgrigg:  "I  saw  Carter  Loyd  buy  hNpior  of  dc- 
fendant,  some  two  or  three  months  ago,  in  Decatur  countv.  In- 
diana;  it  was  beer;  beer  is  intoxicating;  it  made  me  dniidv  on 
that  occasion;  he  drank  the  liquor  inside  the  fence  in  the  bai'l: 
lot  of  the  defendant's  ]>remises;  about  one-half  of  the  back  lot  U 
fenced  oft' to  itself,  and  the  beer  was  drank  in  the  part  of  the  ]..t 
farthest  back  from  the  saloon;  I  saw  the  iiipior  paid  for,  but  do 
not  know  ht)W  much;  C'arter  Loyd,  Jesse  West  and  I  were  to- 
gether; Loyd  bought  the  lifjuor  of  defendant,  and  we  all  draidc 
it  in  defendant's  back  vard;  the  beer  was  taken  out  into  the  back 
yard,  and  the  vessel  returned;  I  took  the  glasses  out  of  the  saloon 
and  drank  out  of  them;  I  was  at  the  back  door  when  the  beer 
was  purchased  by  Loyd;  there  was  nothing  said  about  borrowing 
the  (puu't  cup  and  glasses;  defendant  Eisenman  told  \is  to  go  oil' 
the  premises,  and  we  said  we  would,  but  did  not;  I  have  seen 
other  persons  drinking  in  that  lot  where  we  drank;  there  is  a 
small,  low  fence  at  the  back  ])art  of  the  lot;  we  (h-ank  about 
eighty  feet  from  the  saloon,  and  in  sight  of  it;  there  is  a  high 
fence  that  conceals  the  place;  we  took  the  glasses  back,  and  gave 
them  and  the  quart  cup  to  the  defendant." 

Kathan  Withers:  "  I  have  seen  persons  drinking  in  defend- 
ant's back  lot  several  times,  in  the  same  jdiice  spoken  of  by  AVil- 
liam  II.  Isgrigg;  I  have  seen  them  come  back  from  the  place, 
with  empty  be'^i  glasses,  inclosed  with  a  fence  six  feet  high,  and 


t  Wivs  sold. 
nor  "  tn  1,(. 
111!  act.  It 
.  till'  li'juor 
(Iniiik  imy- 
link  (111  tliu 

It  uilt'L^cs  il 

t  il  iiennit, 

1,  tliiit  the 

e  drunk  cii 

ICC  and  .-^ou 

LMi  Pold  was 

any  liijuor 

i|iinr  of  do- 
coiintv.  In- 
e  tlrniik  on 
in  till!  back 
.^  back  lot  i^ 
•t  of  the  lot 

for,  l)nt  do 
[  I  M-ori;  to. 
,'0  all  ilraiik 
itu  tilt;  back 
f  the  f^alooa 
en  the  beer 
;  borrowing' 
us  to  i^u  otl: 
I  have  seen 
;  there  is  ii 
!rank  about 
•e  is  a  liiu'li 
k,  iind  gave 

in  (lefend- 
of  by  Wil- 
1  the  place, 
t  liin'h,  anil 


KISKNMAN  c.  STATE. 


m 


next  to  tlie  livery  stiilde;  this  iduee  Ims  been  there  several  years; 
tliii^  place  iw  about  one  himdred  feet  back  of  the  miloon." 

Janies  T.  (t illaiii:  '•  Saw  defendant  Hell  a  ({uart  of  beer  to  two 
men,  in  a  (luart  cup,  and  furnidi  them  with  /^lasses  and  the  vea- 
scl,  but  t(dd  them  to  ^o  oil'  the  j)reini.se8  to  drink  it." 

The  defendant  testified  in  his  own  behalf  a^  follows:  "I  do 
not  recidlect  of  sellin<^  beer  to  Loyd,  have  no  recolleetion  about 
it;  it  is  my  universal  eustoni  to  tell  every  man  I  sell  to  to  take 
it  oil'  my  i)remiBes;  1  never  permitted  any  one  to  drink  on  my  lot, 
and  never  knew  that  Carter  Loyd  and  I^^gJ■i<5g  drank  there;  I 
have  employed  a  man  busy  days  to  see  that  none  drank  on  my 
premises;  when  1  furnished  the  vessels  and  the  beer  and  glasses, 
I  generally  tell  them  to  go  oil*  my  premises,  most  generally  fol- 
lowed them  to  the  door." 

Some  parts  of  this  evidence  tend  to  show  that  the  defendant 
did  not  sell  the  liquor  to  be  drunk  on  his  premises,  and  other 
parts  tend  the  other  way.  Tlio  statements  of  the  defendant, 
made  to  purchasers,  that  they  must  not  drink  on  his  premises, 
are  in  iiis  favor.  ]>ut  the  fact  that  he  had  a  place  in  the  rear  of 
his  saloon  where  customers  could  drink  under  the  protection  of 
a  high  fence,  and  where,  we  think,  he  must  liave  known  they 
were  in  the  habit  of  drinking;  that  lie  did  not  deliver  the  liquor 
to  the  j)urchaser8  in  their  own  vessels  to  be  taken  away,  but  al- 
lowed them  to  take  it  out  into  his  lot  in  his  vessels,  and  use  his 
glasses  in  drinking  it,  are  circumstances  from  which  we  think 
the  court  was  justilied  in  linding  that  he  sold  the  liquor  to  be 
drunk  on  his  premises,  notwithstanding  his  formal  request  that 
that  should  not  be  done.  The  place  where  the  liquor  w^as  drunk 
was  in  view  of  the  saloon;  the  defendant  knew  that  the  liquor 
was  taken  out  at  the  rear  of  his  saloon,  in  his  vessels,  and  that 
the  vessels  were  returned  to  him  empty.  This  was  done  repeat- 
edly. On  this  point  we  ought  not  to  disturb  the  judgment  of  the 
circuit  court. 

It  is  claimed,  also,  that  the  evidence  does  not  show,  beyond  a 
reasonable  doubt,  a  sale  of  liquor.  This  was  a  question  for  the 
jury.  The  evidence  was  conHicting.  It  is  not  for  us  to  say 
Avhich  of  the  witnesses  the  jury  ought  to  have  believed,  and 
which  disbelieved.     Isgrigg  swears  to  a  sale. 

It  is  also  suggested  that  the  liquor  sold  is  not  shown  by  the 
evidence  to  have  been  intoxicating  liquor,  within  the  rule  of  this 


',  i 


i  i 


^J^ 


486 


AMERICAN  CRIMIXAL  REPORTS. 


court,  as  laid  down  in  Khiix  v.  The  State,  43  Ind.,  i^:}.  Tn  tlii^j 
case,  one  of  the  witnesses  wlio  drank  of  the  li(|Uor  testitied  tliat 
it  wan  beer,  and  that  it  made  him  ih'unk.  "We  think  tliis  tO;t, 
in  connection  witli  tlie  opinion  of  tlie  witness,  shouhl  be  ivgarded 
as  settling  the  question.  The  third  assiginnent  of  error  presents 
no  question  for  decision. 

The  judgment  is  ntHrnied,  with  costs. 


!'  i 


Effixgku  vs.  State. 

UT  liul.,  2:)o.) 

Liquor  Sellincj:    ricadlmj. 

A  eOnipliiinf  for  selling  lifiuor  on  Sunday,  whii.-h  alleyus  tlio  siilo  to  have  lioon 
"o;(  onibout  the  '2d  day  of  Novuniber,  1873,  the  Miid  day  Ix'inj;"  .Sunday,'' 
is  bad  on  a  motion  to  quas-li,  time  being  of  tlie  e.s.sence  of  the  oll'en^e. 

WoKDKN,  C.  J.  Prosecution  for  selling  liquor  on  Sunday. 
Conviction  and  judgment,  over  motions  to  quash  the  affidavit 
and  in  arrest  of  judgment.  The  affidavit  on  which  the  prosecu- 
tit)n  was  based  is  as  follows: 

"State  of  Indiana,  Jcii'erson  county  —  ss:  "William  Junes 
swears  that  on  or  about  the  2d  day  of  November,  1S73,  in  said 
county,  John  Effinger,  as  affiant  verily  believes,  did  uidawfuUy 
fell  intoxicating  li(piors  to  (Jeorge  Heed,  fcr  ten  cents,  the  said 
day  beinic  Sundav,  and  the  .said  John  Effiuicer  havinir  then  and 
there  a  ])ermit  under  the  then  existing  laws  of  the  state  of  Indi- 
ana to  sell  intoxicating  liquors." 

Two  objections  arc  urged  to  the  aflidavit;  first,  that  it  is  not 
sworn  to  positively,  but  oidy  an  the  affiant  believes;  and  second, 
that  the  time  of  the  otlensc  is  not  sufficiently  stated. 

"We  shall  ])ass  over  the  iirst  t»bjection,  as  the  second  is  fatal. 
Time,  here,  is  an  indispensable  ingredient  of  the  ott'ense,  and 
where  such  is  the  case  it  must  be  accurately  stated.  Clarl'  v. 
The  State,  U  Ind.,  4.3(5;  The  State  v.  Lan,I,  42  id.,  311. 

The  affidavit  alleges  that  the  .sale  was  made  on  or  about  the  2d 
day  of  Novendicr,  1873,  the  said  day  being  Sunday.  "What  day 
is  alleged  to  have  been  Sunday?  Clearly  the  2d  of  Novend)or, 
1573,  as  no  other  day  bad  been  meutioued.     Uut  the  sale  is  not 


BROWN  V.  STATE. 


4S7 


Tn  this 
>tilie«l  that 
^  tliis  to.t, 
JL'  )vn;ar(lecl 
or  presents 


alleged  to  have  been  made  on  tliat  day,  but  only  on  or  about  that 

(lav.    The  sale  may  have  been  made  on  some  other  day  about 

that  time.     The  affidavit  states,  in  substance,  that  the  2d  day  of 

November,  1873,  was  Sunday,  and  that  on  or  about  that  day  the 

defendant  sold  the  liquor.     This  is  clearly  insufficient. 

The  case  cannot  be  distinguished  from  that  of  The  State  v. 
Land,  s(ij>i'a. 

The  court  below  erred  in  overruling  the  motion  to  quash  the 
atHdavit. 

The  judgment  below  is  reversed,  and  the  cause  remanded  for 
further  proceedings  in  accordance  with  this  opinion. 


^1 


to  liavi'  1)0011 
11^-  .^muliiy,"' 
iH'oiisc. 

n  Sunday, 
le  affidavit 
10  proaccu- 

iaiu  Jones 
'73,  in  .-laid 
uidawfully 
ts,  the  .'•aid 
r  then  and 
te  of  Indi- 

iit  it  is  not 
nd  second, 

id  is  fatal, 
iense,  and 
Chifk  V. 
11. 

(»ut  the  L^l 
"What  day 
S'ovend)er, 
sale  is  not 


Bkowx  vs.  State. 
(48  Ind.,  38.) 
LiQUOB  Selling:     Variance. 

Under  an  indictniont  for  a  sale  of  liijuor  to  A.,  proof  of  a  sale  to  A.  and  B., 
jointly,  will  not  justify  a  conviction. 

WoRDKN,  J.  This  was  an  indictment  of  the  defendant  for  re- 
tailing intoxicating  li  pior  on  Sunday.  It  charges  that  the  de- 
fendant, on  the  Gtli  day  of  September,  1874,  that  being  the  first 
(lay  of  the  week,  commonly  called  Sunday,  at,  etc.,  "  did  then 
and  there  unlawfully  sell  to  one  James  Quiidan,  for  the  sum  and 
jirice  of  twenty  cents,  two  drinks  of  whisky,  the  said  whisky  be- 
ing then  and  there  intoxicating  li(|Uor." 

There  was  a  second  count  in  the  indictment,  which,  on  motion 
iif  the  defendant,  was  (juashcd. 

The  defendant  pleaded  not  guilty,  and  upon  trial,  was  con- 
victed, an(l  judgment  was  rendered  on  the  verdict,  over  a  motion 
by  defendant  for  a  new  trial. 

During  the  ])rogress  of  the  case,  the  court  made  an  order  re- 
voking the  defendant's  permit  to  sell  intoxicating  liijuor. 

On  the  trial,  there  was  evidence  that  James  Quiidan  and  John 
Nolan  went  into  the  defeiulant's  saloon  on  the  day  named,  and 
drank  some  whisky,  procured  from  the  defendant,  but  whether 
it  was  sold  or  given  to  them  was  disputed.  The  court  gave  the 
jury  the  following  instruction,  which  was  excei)ted  to  by  the  de- 
fendant, viz.: 


n\ 


4SS 


AMERICAN  CRIMINAL  REPORTS. 


I 


"  If  Qninlan  and  Nolfin  went  into  the  saloon  of  the  defendant 
on  tlie  Sundiiy  morning  in  qnestion,  and  called  for  whisky,  in- 
tending to  jmrchase  it  of  the  defeTidant,  and  the  defendant  set  it, 
the  whislvv,  out  to  them  in  the  regnlar  course  of  his  trade,  in- 
tending  to  make  a  sale  to  them,  and  in  pursuance  t>f  such  mutu- 
al intention,  he  delivered  the  liquor  to  them,  and  they  aceei)tc(l 
it  and  drank  it.  this  would  constitute  a  sale;  and  if  the  refusul 
of  the  defendant  to  take  the  money  was  an  afterthought,  and 
only  indncetl  from  the  fear  of  an  otticer  of  the  law  who  nniy  have 
apjieared  n]>on  the  scene,  it  woidd,  nevertheless,  be  a  sale,  and 
defendant  could  collect  the  price  of  the  liquor  in  an  action  at 
law.'- 

This  charge,  if  it  has  any  signilicance  or  ap])lication  to  the 
case,  means  that  the  facts  eimmerated  by  the  court  would  con- 
stitute such  a  sale  as  W()uld  support  the  indictment  and  author- 
ize the  conviction  of  the  <lefeiulant,  all  other  necessary  facts  be- 
ing proved.  The  jury  must  liave  so  understood  it.  The  court 
will  not  be  presumed  to  have  intended  to  announce  a  mere  al)- 
stract  proposition  having  no  application  to  the  case.  The  charge 
is  erroneous  in  this,  that  it  assumes  that  proof  of  a  sale  made  by 
the  defendant  to  two  jjcrsons  will  sustain  an  indictment  for  a 
sale  to  one  of  them.  A  sale  to  two  persons  is  a  very  different 
thing  from  a  sale  to  one  of  them.  Iseley  v.  The  State,  8  Jilackf., 
403. 

"Wherever  an  obligation  is  undertaken  by  two  or  more,  or  a 
right  given  to  two  or  more,  it  is  the  general  presumption  of  law 
that  it  is  a  joint  obligation  or  right.  Words  of  express  joinder 
are  not  neivssary  for  this  purpose,  but  on  the  otlicr  hand,  there 
should  ])e  Words  of  severeiute  in  order  to  ju'oduce  a  several  re- 
sponsii)ility  or  a  several  riglit."     1  Pars.  Con.,  11. 

We  need  not  here  trace  out  all  the  ditlerences  between  a  con- 
tract with  one  person  only  as  the  jiarty  of  the  one  })art,  and  a 
joint  ct)ntraet  with  two  or  more  persons  as  the  party  of  the  oiie 
])art.  Nor  need  we  discuss  the  consecpiences  that  How  respect- 
ively from  each  of  such  classes  of  contracts.  They  are  so  unlike 
thfit  if  one  joint  contractor  sue  alone,  others  being  alive,  he  must 
fail  upon  the  trial.  And  if  one  joint  contract(»r  be  sued  alone, 
he  may  jdead  the  non  joinder  of  the  other  in  abatement,  or,  if  it 
appear  by  the  declaration  that  there  are  other  joint  contractors 
alive,  who  arc  not  sued,  he  may  demur,  or  he  might,  at  common 


ZEIZER  V.  STATE. 


4S9 


•lefendaiit 
^'liisky,  in- 
laiit  f^Gt  it, 

tmdo,  iii- 
iicli  mutn- 
'}■  ac'ct'ptod 
the  refusal 
OTii;'lit,  and 

may  have 
a  sale,  and 
n  action  at 

tioii  to  the 

vould  coii- 

iid  author- 

y  facts  1)0- 

Thc  court 

!i  mere  ah- 

riie  charge 

Ic  made  In- 

nent  for  a 

y  diftereut 

,'  8  Jilackf., 

more,  or  a 
tion  of  law 
.'ss  joinder 
land,  there 
several  re- 

.'een  a  con- 
)Hrt,  and  a 
of  the  one 
\v  respect- 
3  80  unlike 
e,  lie  must 
uod  alone, 
it,  or,  if  it 
;oi  I  tractors 
t  comniou 


law,  have  moved  in  arrest  of  judgment,  or  have  sustained  a  writ 
of  error.     1  Chit.  P1.,-1G. 

For  the  error  in  the  charge  given,  the  judgment  must  be  re- 
versed. 

This  view  renders  it  unnecessary  for  us  to  examine  the  regu- 
larity of  the  order  revoking  the  defendant's  permit. 

The  jadgn\ent  below,  as  well  as  the  order  revoking  the  appel- 
lant's permit  to  sell  intoxicating  licpxors,  is  reversed,  and  the 
cause  remanded  for  a  new  trial. 

Opinion  filed  May  term,  1874.  Petition  for  a  rehearing  over- 
ruled ]S"ovember  term,  1874. 


Zeizeb  vs.  State. 

(47  Incl.,  129.) 

Liquor  Selling:    Evidence. 


In  a  prosopution  for  soiling  liquor  to  a  pei-son  in  the  habit  of  fretting  mtoxicated, 
the  conipliiiiit  must  allege  aiul  f  lie  proof  siiow  that  such  person  was  in  the 
habit  of  getting  intoxicateil  at  the  thue  the  sale  was  made  to  him, 

DowNKY,  J.  This  was  a  prosecution  against  the  appellant 
under  the  liijuor  law  ot  1873.  The  action  was  commenced  be- 
fore a  justice  of  the  peace,  where,  after  conviction,  the  defendant 
appealed  to  the  circuit  court.  In  the  circuit  court  there  was  a 
motion  by  the  defendant  to  quash  the  afHdavit,  which  was  over- 
rtded.  On  plea  of  not  guilty  there  was  a  trial,  a  linding  of 
uuilty,  a  motion  for  a  new  trial  overruled,  and  sentence  pro- 
nounced against  the  defendant.  Hero  it  is  assigned  as  error, 
among  other  things,  that  the  coiirt  improperly  refused  to  quash 
tlic  atlidavit,  and  to  grant  a  new  trial. 

The  affidavit,  in  substance,  charges  that  the  defendant,  at  a 
previous  date,  sold  to  the  affiant  intoxicating  liquors,  and  that 
the  affiant  was,  at  the  date  of  the  making  of  the  affidavit,  in  the 
habit  of  being  intoxicated.  It  is  not  alleged  that  the  purchaser 
of  the  li(]uor  was  in  the  habit  of  being  or  getting  intoxicated  at 
the  date  of  the  sale  of  the  li(|Uor. 

The  sixth  section  of  the  act  is  as  follows:  "  It  shall  be  unlaw- 
ful for  any  person,  by  himself  or  agent,  to  sell,  barter  or  give 


490 


AMERICAN  CRIMINAL  REPORTS. 


tf' 


intoxicating  liquors  to  any  minor,  or  to  any  person  intoxicated, 
or  to  any  jjerson  who  is  in  tlie  habit  of  getting  intoxicated." 
Acts  1S7;3,  p.  154. 

The  fourteenth  section  provides  the  penalty  for  violating  sec- 
tion C. 

AVe  think  the  pleader  has  in  this  case,  and  in  this  respect,  fol- 
lowed too  closely  the  letter  of  the  statute. 

It  is  alleged,  speaking  of  the  date  of  the  affidavit,  that  the  pur- 
chaser "  is  a  i)erson  in  the  habit  of  being  intoxicated."  We 
think  it  should  have  been  stated  that  the  purchaser  was  at  the 
time  of  the  sale  in  the  habit  of  getting  intoxicated. 

The  affidavit  alleges  that  the  sale  was  on  the  1st  day  of  Xo- 
vember,  1873.  The  trial  was  on  the  12th  day  of  February,  1874. 
The  only  evidence  as  to  the  habit  of  the  jiureliascr  was  tliis:  "  It 
is  admitted  that  Chancey  B.  Lewis  is  a  persoji  in  the  habit  of 
being  intoxica''  '  "  The  allegation  and  the  ]>roof  should  have 
fixed  upon  the  purchaser  tiio  habit  of  getting  intoxicated  at  the 
time  when  the  sale  was  made.  Evidence  of  his  habits  within  a 
reasonable  time  before  sale  would  have  been  admissible,  as  tend- 
ing to  show  what  his  habit  was  at  the  time  of  the  sale. 

There  are  other  questions  uuide,  which,  however,  it  is  unnec- 
essary for  us  to  decide. 

The  judgment  is  reversed  and  the  cause  remanded,  with  in- 
structions to  sustain  the  motion  to  quash  the  affidavit. 


Statk  vs.  Bidulk. 
(54  N.  11.,  ;579.) 

LiQUon  Sellino:    Question  of  fuct. 

VVhcthor  alo  or  eider  is  an  intoxioatint?  liquor  is  a  tiuostion  of  fatt,  and  not  of 
law. 

Ladd,  J.  "Whether  ale  and  cider  are  intoxicating  li(p;ors,  de- 
pends upon  whether  or  not  those  beverages,  being  drank,  pro- 
duce intoxication.  That  is,  the  question  is  as  to  the  eflect  those 
liquors  produce  upon  the  human  system  when  taken  into  tlio 
stomach.  In  chemistry,  two  inorganic  substances  are  brought 
together,  and  the  result  noted.  This  is  called  an  exi)eriment. 
The  result,  which  is  nothing  more  than  a  manifestation  of  a  law 


STATE  V.  BIDDLE. 


491 


'\  I 


of  nature,  under  certain  conditions,  is  a  fact.  By  tlie  careful 
and  patient  observation  of  a  great  number  of  e.\])erlinents  of 
tliis  sort,  a  great  number  of  facts  arc  obtained.  The  wonderful 
fiirces  that  lie  concealed  in  inanimate  matter  are  thus  broujrht  to 
light,  and  with  the  discovery  of  each  new  fact  the  elements  are 
brouglit  more  and  more  into  subjection  to  the  will  of  man,  and 
turiiwl  to  his  use.  Courts,  charged  with  administering  the  mu- 
ni(*ii»al  law,  do  not  generally  undertake  to  determine  these  facts 
of  science,  notwithstanding  they  may  be  universal,  and  nuiy  rest 
upon  the  laws  of  nature,  which  are  at  once  universal  and  immu- 
table. Experts  are  brought  in  for  that  purpose,  and  the  testi- 
ni(»ny  oi  exi)erts  is  addressed  to  the  jury. 

So,  in  the  science  of  medicine,  a  in'lori,  the  eft'ect  of  a  given  sub- 
ptiuice,  when  taken  into  the  stomach,  could  hardly  be  foretold,  I 
sujipose,  by  the  simple  exercise  of  reason.  The  knowledge  of  the 
physician,  as  well  as  the  chemist,  comes  largely  from  experiment. 
The  physician  must  know,  not  oidy  the  effect  which  inorganic 
pimples  ])roduce,  one  upon  another,  but  also  what  effect  they  may 
lie  ex]iected  to  produce  upon  the  organism  of  his  patient. 
"Whether  ale  or  cider  produces  intoxication,  may  be  learned  in 
the  same  way,  that  is,  by  experiment.  Any  person,  who  has 
seen  and  observed  a  number  of  such  experiments,  may,  as  a  wit- 
ness, state  the  result  of  his  observation  to  the  jury.  Any  per- 
son \v\\o  has  performed  the  experiment  himself  nuiy  also  testify 
to  the  knowledge  gained  in  that  way;  but  the  witness  in  both 
cases  is  doing  nothiifg  more  than  stating  a  fact.  The  question 
is,  fundamentally,  a  question  of  fact,  and  there  is  no  conceivable 
view  in  which  anything  else  can  be  made  of  it. 

There  are  undoubtedly  laws  of  nature,  the  existence  and  oper- 
ation of  which  courts,  as  well  as  other  persons  endowed  with  or- 
dinary intelligence,  assume.  Some  of  the  laws  of  light,  some 
of  the  laws  of  heat,  some  of  the  laws  that  govern  falling  bodies 
in  their  descent  to  the  earth,  some  of  the  laws  of  hydraulics, 
are  matters  of  such  constant  observation,  experience  and  knowl- 
edge, that  no  one  would  think  of  requiring  them  to  be  proved. 
Such  knowledge  on  the  part  of  the  jury  is  assumed,  in  the  same 
way  as  it  is  assumed  that  they  possess  consciousness,  memory 
and  reason.  Yet  such  common  knowledge  does  not  convert  what 
is  essentiallv  matter  of  fact  into  matter  of  law.  The  moment 
we  go  beyond  the  range  of  common  experience  and  common 


492 


AMERICAN  CRIMINAL  RfJPORTS. 


I 


I 


'I 


j 


;)  'M^ 


r      IJ' 
'    1.1 


I 


i 


11  m 


knowledujc  in  our  investigation  of  any  of  the  laws  of  natnre,  we 
enter  tlie  domain  of  science;  all  the  dift'erence  is,  tliat,  while  one 
set  of  facts  is  known  and  acted  on  by  all  men,  the  other  may  be 
known  only  to  a  few  who  have  devoted  much  time  and  study  to 
that  particular  subject. 

If  it  were  known  with  ahsolute  certainty  that  all  fermented 
ale  and  cider  invariably  produce  intoxication,  it  would  still  re- 
main a  fact  that  they  are  intoxicating  li<pors,  just  as  much  as 
though  the  matter  were  in  dispute  and  the  evidence  conflicting. 
Does  a  fact,  ascertained  to  he  universally  true,  thereupon  become 
part  of  the  law  of  the  land  ? 

In  Nevin  v.  Lndue,  3  Den.,  437,  Ciiancellor  Walworth,  to 
show  that  ale  was  within  the  terms  of  a  statute  of  New  York 
prohibiting  the  sale  of  "strong  or  spirituous  liquors"  at  retail 
without  a  license,  examines  the  history  of  that  beverage  from 
the  remotest  anticpiity.  lie  shows  that  it  was  in  universal  use 
among  the  Egyptians  in  the  earliest  times,  its  invention  being 
ascribed  to  Osiris,  the  Bacchus  of  that  ancient  people,  and  holds 
that  the  "  strong  drink,"  spoken  of  in  the  Scriptures,  was  a 
liquor  produced  l)y  the  fermentation  of  grain  in  water,  and  that, 
as  the  vine  did  not  Hourish  in  Egypt,  it  probably  was  oinoi^  kr/'.s- 
thinos.,  or  barley  wine,  that  Joseph  gave  to  his  brethren  on  their 
second  visit  to  that  country  to  buy  corn,  when  they  drank  largely 
and  became  intoxicated,  as  the  Hebrew  text  clearly  indicates; 
or,  in  the  language  of  our  translation,  drank  and  were  merry 
with  him.  lie  quotes  Herodotus  and  Xenophon,  Tacitus  and 
Diodorus,  Slculus,  Tertullian  and  Ovid,  the  learned  president, 
De  Goijuet  and  Pliny,  Hebrew  lexicons,  French  lexicons,  eiu-y- 
clopedias,  books  of  history,  books  of  travel,  books  of  science. 
"At  what  time  beer  was  first  introduced  into  England,"  he  tells 
us,  "  is  uncertain,  but  it  was  probably  in  use  there  very  soon 
after  the  discovery  of  that  country  by  the  liomans,  if  not  be- 
fore; for,  according  to  Morewood,  Dioscordes,  who  wrote  in  the 
time  of  Nero,  records  the  fact  that  the  British  and  Irish  then 
used  an  inebriating  liquor,  called  cnrrni,  made  from  barley, 
Morewood  also  states  that  the  maimer  of  making  the  ale  or  l>eer 
by  the  ancient  Britons  and  other  Celtic  nations  is  thus  descrl])ed 
by  Isodorus,  and  by  Orosius,  who  was  a  disciple  of  St,  Augus- 
tine: "  The  grain  was  steeped  in  water,  and  ma<le  to  germinate, 
by  which  its  spirits  were  excited  and  set  at  liberty,  and  it  waa 


latnre,  we 
wliilc  one 
r  niiiy  be 
I  study  to 

erinentcd 

still  re- 

much  ,'is 

•uilictiinr. 

n  becouie 

worth,  to 
Tew  Vork 
'  at  retail 
age  from 
ersal  use 
lou  ])ein:^ 
uul  holds 

3S,    \V!IS    a 

and  thiit, 
ino)^  kr'iK- 
1  on  their 
ik  hiri^ely 
indicates; 
!re  merry 
'itus  and 
'resident, 
ns,  enoy- 
'  science. 
'  lie  tells 
■ery  soon 

not  he- 
te  in  the 
ish  then 
harley, 
)  or  lieer 
escribed 

Augns- 
rininate, 
d  it  was 


STATE  V.  BIDDLE. 


493 


then  dried  and  ground,  after  whicli  it  was  infused  in  a  certain 
quantity  of  water,  and,  being  fermented,  it  became  a  pleasant, 
wanning,  strengtliening  and  intoxicating  beverage." 

"This  li(juor,"  the  learned  chancellor  continues,  "was  called 
by  the  people  of  8})ain,  cclia  or  ccrla.  The  Britons,  as  we  have 
seen,  called  it  eiuurl;  and  in  Germany  and  Gaul,  aa  well  as 
amongst  the  JJomans,  it  was  called  cerevis'm  —  from  Ceres,  t\iQ 
goddess  of  grain,  and  t'w,  power  or  strength.  Its  proper  name 
in  the  English  language,  therefore,  is  strong  liquor  or  strong 
drink.  JJiirkhardt,  Salt,  Bruce,  and  other  modern  travelers  in 
Egypt,  ^'ubia,  Abyssinia,  etc.,  mention  a  similar  liquor  still  in 
use  in  those  countries,  under  the  name  of  lotiza,  which  is  made 
l)y  fermenting  barley  and  other  farinaceous  substances,  with 
water,  but  without  malting  the  grain,  which  makes  a  strong  and 
inebriating  driidc,  and  is  in  extensive  use;  and  an  evidence  of 
its  intoxicating  qualities  is  the  fact  stated  by  one  of  those  writers 
that  it  is  sometimes  used  to  catch  monkeys,  who,  like  the  bipeds 
they  are  so  apt  to  imitate,  are  inclined  to  partake  of  the  pleas- 
ures of  the  inebriating  cup,  without  duly  considering  the  eon- 
sequences.  To  eft'ect  his  object,  the  monkey-catcher  places  a 
vessel  iilled  with  houza  at  the  foot  of  the  tree  on  which  the 
animals  are  gamboling,  and  then  watches  at  a  distance  until 
they  come  down  and  regale  themselves  to  intoxication,  and  we, 
who  have  seen  the  eftect  of  similar  proceedings  elsewhere,  can 
readily  imagine  what  is  the  inevitable  result  of  this  stratagem  to 
the  boozy  monkeys." 

The  result  of  the  learned  chancellor's  very  entertaining  and 
instructive  discussion  is,  to  show  that  for  uiany  hundred  years 
and  in  many  different  countries,  a  liquor,  similar  to  ale,  made  by 
fermenting  grain  with  water,  has  been  known  and  used,  that  it 
has  been  sjjoken  of  by  many  writers,  sacred  and  profane,  as 
strong  drink,  l)arley  Avine,  etc.,  and  that  its  effects  have  always 
been  described  as  inebriating.  The  evidence  thus  laboriously 
collected  would  doubtless  go  far  to  satisfy  a  candid  mind  that 
ale  is,  in  point  of  fact,  an  intoxicating  liquor,  or,  at  least,  that  it 
lias  been  observed  to  })roduce  that  effect  on  men,  as  well  aa 
monkeys,  by  a  great  number  of  intelligent  and  veracious  writers, 
during  a  period  which  covers  a  large  portion  of  the  known  his- 
tory of  the  world.  If  the  question  were  simply  whether  ale  is 
intoxicating,  it  would   doubtless  strike  one  as  sufficiently  ludi- 


,|i'i| 


.n 

H 
H 

(if 


.-■^ 


494 


AMERICAN  CRBIINAL  RETORTS. 


u 


>,    I 


i  f  1 


crous  that  tliel)oolv8  should  he  ransacked  foi'  two  or  three  thous- 
and years  hack  to  ohtain  evidence  l)y  wliich  to  determine  tlie 
point,  or  tliat  hearsay  evidence  of  an  experiment  j)erfornied  upon 
a  jnonkey  with  a  liquor  somewhat  re^enildinj^  ale  should  he 
sought  out  and  considered,  when  direct  evidence  of  the  etlect  of 
real  ale  upon  a  man  must  have  heen  easy  of  attaintmont,  even  iu 
New  York.  Of  course,  no  such  thing  was  in  the  mind  of  the 
learned  judge  who  delivered  this  somewhat  facetious  opinion. 
The  ohject  of  the  discussion  was  to  show  that,  hy  the  true  con- 
struction of  the  statute,  the  sale  of  ale  came  within  its  prohih- 
ition.  Still,  it  seems  to  me  that  the  conclusion  is  nothing  less 
than  this:  that  hecanse  ale,  or  a  fermented  licpior  resemhling  it 
has  always  and  universally  heen  understood  to  lie  intoxicating, 
that  fact  has,  therefore,  become  incorporated  into  the  municii»al 
law  of  the  state,  and  to  this  conclusion  I  cannot  agree.  If  tiio 
legislature  had  intended,  absolutely,  to  prohibit  the  sale  of  ale, 
leaving  no  rpicstion  as  to  its  intoxicating  qualities  to  be  settled 
by  anybody,  it  was  easy  for  them  to  have  said  so  in  a  single 
word.  What  they  did  was  to  prohibit  tlio  sale  of  all  intoxicating 
liquors,  leaving  it  to  be  determined,  in  someway,  by  the  tribunal 
charged  with  administering  the  law,  whether  the  ])articuhir  case 
comes  within  the  general  terms  of  theprcdiibition.  Where  is  the 
legal  test  with  which  the  courts  are  to  determine  the  (jnestioiij 
Suppose  here  are  twenty  different  kinds  of  liquor,  each  contain- 
ing a  different  ])ercentage  of  alcohol,  from  one  to  twenty,  what 
is  the  shape  of  the  legal  formula  with  which  the  court  are  to 
draw  the  line  between  that  which  is  intoxicating  and  so  witliiu 
the  legislative  prohibition?  The  truth  is,  the  question  is  essen- 
tially one  of  fact,  and  I,  for  one,  see  no  reason  why  a  fact  ^^o 
obvious  or  well  known  as  to  require  little  or  no  pntof  shouUl  he 
withdrawn  from  the  inry  and  settled  bvthc  court,  anv  more  than 
one  less  obvious,  with  res])ect  to  which  the  evidence  may  Ijc 
doubtful  or  conflicting. 

The  terms  of  the  ruling  in  the  present  case  give  s]»ecial  prom- 
inence to  the  process  of  fermentation.  Indeed,  they  seem  to 
imply  that  the  completion  of  that  process  is  the  criterion  where- 
by to  determine  whether  the  liquor  is  intoxicating  or  not.  In 
point  of  fact  this  may  be  so.  Ihit  it  is  difficult  to  sec  how  any- 
thing is  thereby  gained,  unless  it  be  first  ascertained  with  cer- 
tainty that  fermentation  always  produces  intoxicating  liquors. 


,'*    ,    '■'  ''  VS 


STATE  V.  BIDDLE. 


495 


roe  thoiis- 
"lino  the 
riKMl  u])ou 
f^lH)uI(l  l)e 
»'  I'Ul'ct  of 
t  even  in 
ik]  of  tlie 
<>l'inioii. 
true  con- 
■p  proliib- 
tliini^;  less 
'UiMing  it 
oxicatiiiir, 
ninnici]ial 
e.     Iftlie 
lie  (if  ale, 
l»c  settled 
a  sin_:j:le 
:oxicatinir 
c  tril)n?ml 
cular  case 
lere  is  the 
(juestiiMi^ 
1  contai!!- 
ntv,  what 
irt  are  to 
tit)  within 
!  is  essen- 
.1  fact  PC) 
*]ionl(l  he 
noro  tlian 
!  may  l)o 

ial  proin- 

seem  to 

•n  wliere- 

not.     In 

how  any- 

with  cer- 

liquors. 


It  is  plain  that  if  one  fermented  li(|nor  is  intoxicating  and  an- 
other not,  we  are  no  nearer  a  legal  solution  of  the  matter,  when 
we  are  informed  that  the  particular  cider  or  ale  in  question  is 
fermented  than  wo  were  hefore.     The  nltimate  ([uestion,  Is  ale 
or  cid-er  intoxicating  liquor?  still  remains  unanswered.    As  to 
the  effect  of  fermentation,  we  have  the  excellent  authority  of  the 
learned  chancellor,  from  whose  opinion  I  have  already  quoted  so 
much  at  length,    lie  says,  "But  the  term,  fermented  beer,  in 
the  connection  in  which  it  was  used  before  the  justice,  might 
well  have  been  understood  by   Nevin  as  intended  to  cover  a 
charge  of  selling  some  of  the  various  kinds  of  beer  which  have 
long  been  in  use  in  this  country  under  the  different  names  of 
spruce  beer,  6])ring  beer,  ginger  beer,  molasses  beer,  etc.    Each 
of  these  may  very  properly  be  termed  fermented  beer,  as  fermen- 
tation to  a  certain  extent  is  necessary  to  lit  the  article  for  use. 
AVhat  was  denominated  small  or  table  beer  in  England  was  a 
different  article  from  any  of  these,  and  was  an  excisable  liquor 
under  the  general  name  of  beer.     For  it  differed  from  porter  only 
in  its  strength,  and  being  sold  at  a  smaller  price;  it  was  for  that 
reason  charged  with  a  lower  rate  of  duty  under  the  English  stat- 
utes,    Ihit  the  other  kinds  of  beer  to  which  I  have  alluded  were 
never  considered  as  strong  lifpiors,  or  intoxicating  beverages, 
cither  here  or  in  England,  and  therefore  were  not  excisable  arti- 
cles.    They  do,  indeed,  cuntain  a  certain  amount  t)f  alcohol,  as 
every  liquid  containing  saccharine  matter  does,  immediately  after 
the  vinous  fermentation  has  commenced.     But  they  have  not 
been    considered   as   strong  drinks,  or  intoxicating  beverages, 
either  because  it  was  supposed  that  the  human  stomach  had  not 
capacity  to  contain  a  suflicient  quantity  of  those  kinds  of  beer, 
if  they  were  properly  made,  to  unduly  or  injuriously  excite  the 
person  who  used  them  as  a  beverage,  or  for  the  reason  that  those 
who  were  in  the  habit  of  using  them  never  got  intoxicated  by 
such  use."     In  /State  v.  Adams,  51  N.  II.,  5CS,  Smitu,  J.,  states 
the  scientific  fact  that  alcohol  may  be  obtained  by  distillation 
from  fermented  milk. 

Upon  this  authority  it  is  safe  enough  to  say  that  neither  fer- 
mentation nor  the  presence  of  alcohol  can  be  adopted  as  an  ab- 
solute legal  test  to  determine  whether  any  liipiid  is  intoxicating 
or  not,  inasmuch  as  there  are  fermented  liquors  containing  alco- 
hol, which,  like  milk,  do  not  inebriate. 


I 

i'. 

I 


l| 


490 


AMERICAN  CRIMINAL  REPORTS. 


; 


Our  statute,  by  using  the  word  sj^irituous,  forbids  the  sale  and 
kcejnng  for  sale  of  certain  specified  lii^uors,  that  is,  such  as  are 
obtained  by  distillation.  The  generic  term,  intoxicating,  also 
found  in  the  statute,  is  of  much  broader  signilication.  It  is  true, 
the  provision  found  in  section  24  of  the  liquor  law,  to  the  ellcct 
that  nothing  in  the  act  shall  be  construed  to  prevent  the  sale  or 
keeping  for  sale  of  domestic  wine  or  cider  unmixed  with  spir- 
ituous liquor,  except  when  sold  to  be  drunk  on  or  about  the 
premises  where  sold,  implies  an  understanding  on  the  part  of  the 
legislature  that  cider  might  come  within  the  general  prohibition 
of  the  act;  but  they  carefully  refrained  from  mentioning  that 
beverage  by  name,  and  thus  left  it  with  the  large  class  of  liquids, 
such  as  wine,  ale,  ])orter,  beer,  etc.,  known  to  contain  more  or 
less  alcohol,  prohibited  or  not,  according  to  the  fact  of  its  intox- 
icating quality. 

AVc  are  of  ojjinion  that  as  to  all  liquors  except  those  specially 
designated  by  the  term  "  spirituous,"  before  the  act  can  bo  ap- 
plied to  them,  it  must  be  ascertained  in  a  legal  way  that  they 
come  within  the  deiinition.  This,  as  already  more  than  once 
remarked,  is  clearly  an  unmixed  question  of  fact,  and  we  sec  no 
ground  upon  which  it  can  legally  be  determined,  as  matter  uf 
law,  by  the  court.  We  are  therefore  of  opinion  that  the  ruling 
was  erroneous,  and  that  the  verdict  2Iust  he  set  ats'ide. 

(State  V.  Long,  74  N.  C,  121,  is  an  authority  to  the  same  effect.) 


>   1- 


Li'i 


in 


Lathrope  vs.  State. 

(.JO  Ind.,  555.) 

Liquor  Selling:    Intoxicating  liquor. 

Whether  or  not  liiger  hoer  i.s  intoxicating  is  a  question  of  fact,  and  not  of  law. 
BiDDLE,  C.  J.,  dissentuig. 

Pettit,  J.  This  was  a  prosecution  under  the  act  of  February 
27,  1873,  for  giving  intoxicating  liquors  to  a  person  who  was  in 
the  habit  of  getting  intoxicated. 

The  only  question  in  the  case  is,  Was  the  evidence  sufficient  to 
sustain  the  conviction?  All  the  evidence  as  to  the  kind  or  qual- 
ity of  the  liquor  given  or  drank  was  this:  Mrs.  Woods  testified: 
"Saw  him,  Maggart,  drink  beer;  did  not  see  any  one  give  it  to 


'    ■!*.'•" 


DIGGERSTAFF  t-.  CX)MMOXWEALTH. 


491 


le  sulo  and 

iicli  as  uro 

tiiiif,  also 

It  is  true, 

the  ellect 

lie  sale  or 

with  spir- 

iiljout  the 

)art  of  the 

rohibition 

"iiig  that 

->f  lifiuids, 

I  more  or 

its  iiito.x- 

!  specially 
3au  bo  ap- 
that  they 
than  once 
wo  see  no 
matter  of 
he  rulinir 
t  aside. 


i 


him.  *  *  Latlirope  called  for  it;  eaid  It  was  fresi' beer;  can't 
remember  what  they  called  it;  saw  the  ke^  in  the  case." 

Mrs.  M.  II.  Frazior  testiHed:  "Know  Wm.  P.  ;Mag<;art;  it 
was  on  the  30th  day  of  April  ho  was  intoxicated;  have  seen  him 
twice  since  then;  he  was  in  the  saloon  then;  1  saw  him  drinking' 
intoxicating  liquors  there;  they  were  standing  at  the  lower  end 
of  the  counter;  he,  Henry  Lathrope,  said  it  was  fresh  beer;  I 
said  to  Mrs.  Wowls, '  there  is  a  very  drunk  man  drinking  beer; ' 
he  had  beer  in  his  hands  when  I  saw  him;  Latliro])e  said  after- 
ward, it  was  some  one  else's  treat;  Mr.  Handel  was  behind  the 
bar;  don't  know  what  it  was;  have  heard  the  same  kind  called 
lager  beer:  drawn  from  keg  on  cast  end  of  counter;  it  was  about 
the  middle  of  the  afternoon."  Cross-examined :  "  They  had  the 
beer  in  their  hands  at  the  time  when  I  saw  them;  there  were 
three  or  four  drinking  at  the  time;  don't  remember  any  other 
lieer  being  set  up;  don't  remember  of  hearing  before  we  went  in; 
dun't  know  who  called  it  out;  my  best  judgment  is  that  it  was 
beer;  it  is  merely  my  impression  that  it  was  beer;  never  drank 
any  myself." 

This  docs  not  jirove  that  the  beer  was  intoxicating  licpior,  and 
following  the  well  considered  case  of  Klarev.  The  State,  A:^  Ind., 
483,  we  hold  that  the  evidence  was  not  sufficient. 

The  judgment  is  reversed,  with  instructions  to  sustain  the  mo- 
tion for  a  new  trial. 

BinoLK,  C.  J.  I  dissent.  The  evidence,  in  my  opinion,  shows 
that  the  kind  of  lii^uor  sold  was  "  called  lager  beer."  This,  I  think, 
was  sufficient,  uncontradicted,  to  authorize  the  finding  as  to  the 
character  of  the  lic^uor.  That  "lager  beer"  is  intoxicating,  is  a 
fact  which  must  be  judicially  known,  without  special  ])roof. 


not  of  law. 

February 
10  was  in 

fficient  to 

1  or  qual- 

testified: 

give  it  to 


BiGGEKSTAFF  VS.  CoMMONWEALTU. 

(11  Bush,  Ky.,  1G9.) 

Peiwury. 

Pcqury  cannot  be  assigned  on  an  oath  administered  by  a  judge  of  election  who 
has  not  been  himself  sworn. 

Lindsay,  J.    This  prosecution  was  based  upon  the  14th  sec- 
tion of  the  12tii  article  of  chapter  32  of  the  revised  statutes, 
Vol.  1.-32 


4D8 


AMKRICAN  CRIMINAL  RKPORTS. 


■wliieli  is  ill  these  words:  "  Any  person  who  shiill  inukc  uny 
wilfully  fiilse  statement  under  an  oatli  duly  administered  at  uii 
ciection  shall  be  deemed  guilty  of  jierjury,  and  incur  tlie  ])eiialty 
for  that  prime."  The  indictment  charges  th.it  the  accused,  on 
the  'JM  <lay  of  Scpteml)cr,  1S72,  in  the  county  of  Madison,  faLsely 
and  corruptly  swore  that  he  was  twenty-one  years  of  age,  when, 
in  point  of  fact,  lio  was  not  that  old,  and  knew  at  the  time  lio 
was  not;  and  that  he  so  swore  in  order  to  procure  the  right  to 
vote;  and  that  by  means  of  said  oath  ho  succeeded  in  being  al- 
lowed to  vote  in  an  election  then  being  held  for  sheritl"  of  t;iiiu 
county.  It  is  further  charged  that  said  oath  was  "duly  admin- 
istered l)v  the  officer  and  I'udge  of  said  election." 

Appellant  demurred  to  the  indictment,  but  his  demurer  was 
overruled.  lie  was  then  tried  and  convicted,  and  sentenced  to 
one  year's  confinement  in  the  state  ])cnitentiary.  To  reverse  the 
pulgment  of  the  circuit  court  he  jtrosecutesthis  ap})eal. 

It  was  proved  on  the  trial,  by  1).  Ii.  Willis,  that  he  actetl  as 
one  of  the  judges  of  the  election,  and  that  he  administered  the 
oath  which  ajtpellant  is  charged  to  have  falsely  and  corruptly 
taken.  He  proves,  further,  that  ho  (Willis)  did  not  take  the  oath 
]irescribed  by  law  for  judges  of  election,  and  that  he  was  actii-^^, 
at  the  time  appellant  was  sworn,  as  a  judge  of  the  election,  with- 
out having  taken  said  oath. 

Upon  this  evidence  the  accused  asked  the  court  to  give  the 
following  instruction:  "  If  the  jury  believe,  from  the  evidence, 
that  the  defendant  was  sworn  by  I).  I*.  Willis  only  as  a  judge  uf 
the  election,  and  that  Willis,  a,s  such  judge,  had  never  been  sw(»rii 
to  jierform  his  duties,  then  they  should  iind  the  defendant  nut 
guilty." 

It  appears  that  Willis  was,  at  the  time,  a  justice  of  the  jx'.ice; 
but  as  section  7  of  article  3,  chapter  32  of  the  revised  statutes 
provides  that  oaths,  which  j)ersons  offering  to  vote  at  elections 
held  under  the  provisions  of  that  chapter  may  be  recpiired  to 
take,  fehall  be  administered  by  one  of  the  judges  or  by  the  clerk 
of  election,  he  had  no  power  or  authority,  as  jiistice  of  the  peace, 
to  administer  the  oath  to  the  accused;  and  the  necessary  and 
legal  presumption  is,  that  in  administering  said  oath,  he  acted  in 
the  capacity  of  judge  of  the  election. 

Section  four  of  the  chapter  and  article  in  question  j)rovides 
that  "  each  judge  and  clerk  of  an  election  shall,  before  entering 


1  iiiiiko  Hiiy 
«tert'(l  at  an 
tho  i>oiialty 
aecusod,  on 
isoii,  fuLst'ly 
'  ii^'e,  \vl;eii, 
lie  time  he 
lie  rii,'lit  to 
n  Ijciiii,'  al- 
eritr  of  t;ai(i 
luly  admiii- 

einurer  was 
.Mitenced  to 
reverse  tlie 
111. 

lie  acteil  as 
ilstcred  tho 
il  corruptlv 
ike  the  oatli 
was  ac'tii-'f, 
ctioii,  with- 

to  give  the 
lie  eviilence, 
s  ajlu]^'e  uf 
been  swurii 
feiichiiit  nut 

the  poacc; 
t'd  statutes 
lit  elections 
requircil  to 
IV  the  clerk 

V 

i  the  peace, 
pessary  and 
he  acted  in 

»n  j)rovides 
re  entering 


^ 


BIi.iGERSTAl'r  r.  COiLMONWHALTJI. 


409 


on  the  dutie?  of  his  ofHoo.  take  the  oath  prescrihed  by  the  con- 
stitution lieforc  Bonie  justice  of  the  peace,  or  it  may  be  adminis- 
tered by  the  Hheritr." 

If  Willis  assumed  to  act,  without  taking  the  oath,  he  was,  at 
most,  but  an  oftlcer  ihf<.ufn.  To  what  extent  his  acts  would  bo 
iijilu'ld,  in  order  to  protect  and  ])re8crve  the  rights  of  legal  voters 
voting  at  the  electi(»ns,  in  controversies  between  rival  candidates 
for  ollicc,  we  will  not  midertake  in  this  case  to  determine.  Tho 
(|Ucstion  here  is,  whether  AVillis  was  authorized  by  law  to  ad- 
min i^t('r  the  oath  to  the  accused.  If  hu  was  not  so  authorized, 
It  would  seem  to  f(dlow  that  the  judgment  of  the  circuit  court 
can  not  l)e  sustained. 

Xo  fiath  taken  before  "  those  who  take  upon  them  to  adminis- 
ter oaths  of  a  public  nature  without  legal  authority can  ever 

amount  to  perjury  in  the  eye  of  the  law,  for  they  are  of  no  man- 
ner of  force."  Rose.  Crlm.  Ev.,sec  074;  2  Iluss.,  52J ;  1  Hawk. 
P.  C,  ch.  01),  sec.  4 ;  3  Camp.,  432. 

AVherc  oaths  are  a<lniinistered  in  a  regularly  organized  court, 
and  it  appears,  ^>;'//«^/y;<(' A,  that  the  judge,  magistrate  or  oiKcer 
liefore  whom  the  oath  was  taken  \\\\)i  <Je  f<ido  hx  the  ordinary 
exercise  of  his  office,  the  Inirden  is  devolved  upon  the  prisoner 
of  showing  the  want  of  proper  legal  authority.  Ihtt  this  rule  is 
applicable  o!ily  to  public  functionaries;  and  where  the  authority 
to  administer  the  oath  was  derived  from  a  special  commission, 
or  where  it  is  delegiitod  to  be  exercised  only  nnder  ])artlcular 
circumstances,  the  commission,  in  the  one  case,  or  the  existence 
of  the  essential  circumstances  in  the  other,  must  be  distinctly 
proved.     3  Greenl.  on  Ev.,  sec.  190. 

At  the  common  law  the  authority  of  the  officer  administering 
the  oath  was  always  open  to  inquiry.  The  existence  of  that  rule 
was  recognized  and  continued  in  force  by  the  revised  statutes, 
f  ectioii  2,  article  S,  chapter  ("U  crimes  and  punishments,  which 
provided  "  that  If  any  person,  in  any  matter  which  is  or  may  be 
judicially  pending,  or  on  any  subject  in  which  he  can  legally  be 
sworn,  or  In  which  he  Is  required  to  be  sworn,  when  swovii  hy  a 
p'i'Koii  autJiorhed  hy  htio  to  administer  an  oath,  shall  wilfully 
and  knowingly  swear,  depose,  or  give  in  evidence  that  which  is 
untrue  and  false,  he  shall  be  confined  In  the  penitentiary,"  etc. 

An  essential  prereipilslte  to  the  establishment  of  the  guilt  of 
the  accused  is,  that  the  oath  shall  have  been  administered  "  by  a 


500 


AMERICAN  CRIMINAL  RETORTS. 


f  V 


l'!t 


[A, 


person  authorized  by  law  to  administer  an  oath."  If  Willis  did 
not  take  the  prescribed  oath  of  office,  he  was  not  authorized  ly 
law  to  act  as  a  judge  of  the  election,  and  could  iM)t  tliercfore  have 
been  authorized  to  administer  such  oaths  as  the  laws  niai^e  it  tlio 
duty  of  the  judges  and  clerks  of  election  to  adnunister. 

The  rule  founded  upon  public  ]i(dicv,  which  rc(piires  the  acts 
of  <h'  fiti'to  othcers  to  be  treated  for  many  ])urposes  as  valid  and 
binding,  do'-S  not  a])]>ly  when  an  oath  administered  by  j^uch  an 
officer  is  nnide  the  foundation  of  a  prosecution  for  perjury. 

From  these  conclusions  it  follows  that  the  ijistruction  imdoi' 
consideration  should  have  been  given.  ^^  s  v;e  have  no  jxiwer  tu 
reverse  for  an  error  of  the  circuit  court,  in  overruling  a  demurrer 
for  an  indictment,  we  will  not  inquire  as  to  the  suffic'ency  uf  the 
indictment  in  this  case.  Nor  do  we  deem  it  necessary  to  advert 
to  other  sujjposed  errors  to  which  our  atttention  was  called  in 
the  argument. 

For  the  error  in  refusing  to  give  the  instruction  heretofore  set 
out  in  full,  the  judgmetit  is  reversed,  and  the  cause  remanded 
for  further  proceedings  not  inconsistent  with  this  oiiinion. 


COMV.ONWKAI.TU    VH.    GkANT. 


(IIG  Mass.,  17.) 

Pehjuky:    MdhridJil;/  of  UstliHOiii/, 

A  party  not  onlj' commits  perjury  liy  swcariii;.;- falsi'ly  and  comiptly  a>  to  tli'^ 
fact  which  is  inmu'diatfly  in  issiu',  hut  also  in  sweariu),'  falsely  ami  comiptiy 
a.s  to  materiul  circumstances  teiuliny  to  prove  nr  disprove  such  fact,  and  this 
without  reference  to  the  iiuestion  wlietlier  such  fact  does  or  does  nut  exi-t. 
It  is  as  much  i)erjury  to  cstalilish  tlu>  truth  liy  false  testimnny  as  !•)  niain- 
ttiin  a  falsehood  hy  such  testimony,  and  the  fact  that  the  former  may  lead  to 
a  correct  decision  is  immaterial. 

In  Conimomvealth  v.  O'rtaif,  which  was  a  prosecution  for  per- 
jury, the  facts  were  as  follows:  The  resjtoiident  Grant  had  pros- 
ecuted a  woman  named  Linnell  for  larceny.  She  defeudeil  uii 
the  ground  that  she  had  been  married  to  (Jrant,  and  was  his 
wife.  She  testified  that  she  had  been  married  to  him  by  a  min- 
ister in  I'rovidence,  11,  I.,  and  had  afterwards  lived  with  Cirant, 
and  been  introduced  by  him  as  his  wife,  and  she  ])roduced  a  cer- 
tificate of  the  marriiige  which,  however,  the  district  attorney  ad- 


COMMONWEALTH  e.  GRANT. 


501 


itliorizeil  l^v 
I'ofuro  liave 
make  it  the 
or. 

I'OS  tllO  ilfts 

iis  valid  and 
l)y  8iicli  an 
i-jiiry. 
ctioii  uinler 

lU)  JloWtT  tu 

a  duiiiurror 
•oiu'v  of  the 
ry  to  advert 
vas  called  in 

orctofore  set 
se  reuiaiided 
)iniuM. 


njitly  as  fi)  til- 
y  1111(1  nimi|itly 
ii  fait,  aii4  tliiri 
tliK's  not  i'.\i>t. 
ny  iis  to  luaiii- 
ii'i"  inavli'ad  to 


ion  for  per- 
il liad  piMs- 
lefeiided  uii 
lul  was  Ilia 
1  l»y  a  miii- 
vitli  (iraiit, 
lucod  a  eer- 
ttornev  ud- 


luitted  on  the  trial,  was  a  forj^ed  document.    Tliere  was  no  direct 
cvi<lence  that  (irant  had  been  married  to  the  woman,  except  lier 
own  testimony.     There  was  other  evidence  that  he  had  repre- 
sented her  as  his  wife.     Grant  on  the  trial  of  the  larceny  charge, 
testified  that  he  had  never  been  married  to  her,  never  had  lived 
witli  lier  as  her  husband,  althouj^h  he  admitted  he  had  lived  with 
licr,  and  never  had  acknowledged  her  as  his  wife.     For  giving 
tliis  testimony  he  was  indicted  for  })er)ur3\     On  the  trial  of  the 
indictment  for  ])erjury,  the  defendant's  counsel  claimed  that  he 
could  not  be  convicted  of  perjury  unless  he  had  actually  been 
married  to  the  woman,  or  had  gone  through  a  inarriatre  ceremony 
with  her,  for  the  reason,  as  it  would  apjiear,  that  as  the  woman 
could  (»nly  defend  agiiinst  the  charge  of  larceny  on  the  ground 
that  she  was  or  believed  herself  to  be  his  wife,  the  fact  that 
(irant  had  represented  her  to  be  his  wife  was  immaterial  to  the 
issue.     The  trial  judge,  however,  ruled  otherwise,  and  instructed 
the  jury  that  if  (Jrant  had  represented  the  woman  to  be  his  wife, 
he  was  guilty  of  ])erjury,  even  though  in  fact  he  never  had  mar- 
ried her,  or  gone  through  a  ceremony  of  marriage  with  her. 
15eiiig  convicted,  this  instruction  was  assigned  for  error.    The  su- 
preme court  sustained  the  ruling  of  the  trial  judge.    The  opinion 
of  the  court  was  delivered  by  Dkvkns,  J.,  who  uses  this  language: 
"A  party  not  oidy  commits  perjury  by  swearing  falsely  and 
corruptly  as  to  the  fact  which  is   immediately  in  issue,  but  also 
by  so  doing  as  to  material  circumstances  which  have  a  legitimate 
tendency  to  prove  or  disprove  such  fact,     lie  cannot  in  the  latter 
case  exonerate  himself  from  the  offense,  because  while  the  cir- 
cumstances to  whicii  he  thus  swore  did  not  exist,  the  fact  sought 
to  be  established  by  them  did  exist.     Even  if  the  defendant  was 
not  married  to  Linnell,  if  he  corruptly  and  falsely  swore  that  he 
had  not  so  represented,  that  he  had  not  lived  with  her  as  his 
wife,  and  had  not  made  an  agreement  of  separation  with  her, 
this  testimony  was  material  in  the  decision  of  the  issue  as  pre- 
sented to  the  police  court,  and  might  therefore  be  properly  in- 
cluded in  the  assignment  of  perjury  contained  in  the  indictment. 
The  offense  of  the  defendant  consisted  in  making  false  statements 
intended  to  corrupt  vhe  administration  of  justice,  by  inducing  the 
magistrate  to  render  a  decision  based  thereupon,  and  it  is  not  the 
less  an  oifense  because  the  decision  was  in  fact  correct. 

Exccjjtions  overruled .^^ 


f  I 


503 


A5IE1UCAN  CRIMINAL  REPORTS. 


irt 


u 


State  vs.  IIked. 
(."i?  Mo.,  2o-2.) 

Peujuhv:    Eriiliiicc  —  IieasO)t(iblc  doubt. 

On  a  trial  for  perjurj-  to  justify  u  conviction  on  the  evidence  of  one  \vitnoss,  it  is 
not  necessiiiy  that  sucli  mtncsi  slioiild  be  coiTobonited  by  additional  ciivinn- 
stances  equivalent  to  the  oath  ot  a  .second  witness.  The  end'.'nce  to  i-ustaiu 
a  conviction  must  be  soaicthlny  more  than  suiHciont  to  counterbaLuice  the 
oath  of  the  prisoner  and  the  leg'al  presnniptioii  of  his  iniwcrnce. 

It  is  the  duty  of  tlie  court  when  charging  the  jmy  that  they  nnist  be  satij^llcd 
beyond  a  reiusonable  doubt  of  tlie  respondent's  guilt  to  explain  what  is  a 
reasonable  doubt. 

"VVaonek,  J.  The  clcfeudant  was  indicted  in  the  JSIcrcer  countv 
circuit  court  for  perjury,  and  convicted  of  that  crime. 

The  material  cliari^e  in  tlie  indictment  was,  that  on  a  trial 
Lefore  a  justice  of  the  peace,  wherein  tlie  defendant  was  jilaintiil", 
and  one  Willis  Cani])l)ell  was  defendant,  the  jdaintifl'  swore  that 
on  a  certain  occasion,  Caniphcll  drove  through  his  inclose<l  lield. 
The  only  direct  testimony  to  the  falsity  of  the  defendant's  oatli 
Avas  given  by  Campbell;  but  there  was  some  other  testimony 
"which  had  a  tendency  to  corroborate  or  sustain  him.  defendant 
also  introduced  other  witnesses  who,  in  a  certain  degree,  sup- 
ported the  truth  of  his  evidence  before  the  justice. 

"We  have  no  intention  of  commenting  n])on  the  evidence,  as 
had  the  jury  found  either  way,  there  would  have  been  testimony 
on  which  they  might  have  found  their  verdict. 

Tie  only  (question  necessary  to  notice  is  presented  by  the  dec- 
larations ol  law  given  by  the  court. 

The  lirst  instructit)n  <;iven  for  the  stiitc  was  to  the  eilect,  that 
if  the  jury  ]>elieved,  ])eyond  a  reasonable  doul)t,  that  the  defend- 
ant in  the  suit  before  the  justice  of  the  i)eace,  wilfully,  corruptly 
and  falsely  testified  that  Camjjbell  drove  his  wagon  and  team 
through  defendant's  inclosed  iield,  they  should  lind  him  guilty. 

The  second  instruction  for  the  prosecution  was,  that  the  jury 
could  not  ac(p.!it  from  a  mere  possible  doubt;  but  that  it  should 
be  a  reasonable  doubt. 

The  first  instruction  given  for  the  defendant  told  the  jury,  that 
the  evidence  of  the  defendant  in  the  suit  before  the  justice  of  the 
peace  was  presumed  to  be  true,  and  that  the  presum])tion  must 
be  removed  by  the  evidence  of  two  witnesses,  or  the  evidence  oi 


STATE  V.  HEED. 


503 


no\\-itiie>s,itis 
itional  ciiviiiii- 
'.'iice  to  si.stiiiu 
itui-biiliuicc  Ibt.' 
ce. 

1st  Ijo  satifiiliil 
phiiu  what  is  a 


srcer  county 

on  a  triiil 
as  i)l!ii)itiir, 
r  swore  that 
it'luscd  lield. 
ulant's  ojith 
r  tostiiiioiiy 
iJefeiidajit 
k'gree,  sup. 

evidence,  ;i.s 
n  testiinuuy 

by  the  dee- 

eliect,  tliut 
the  del'eiid- 
y,  corru])tly 
J  and  teajii 
ini  guilty, 
it  tlio  jury 
it  it  should 

0  jury, that 
stice  of  the 
ptioii  mui^t 
ivideucu  oi. 


one  witness  with  such  other  corroborating  circumstances  as  were 
necessary  to  overcome  the  presumption  and  establish  his  guilt. 

The  fourth  instruction  which  was  asked  by  the  defendant  and 
refused  by  the  court  asserted  the  proposition  that,  before  the 
jury  could  convict,  it  was  necessary  to  establisli  the  falsity  of 
the  oath  taken  by  him  by  the  evidence  of  two  witnesses,  or  by  the 
evidence  of  one  witness,  with  such  other  corroborating  circum- 
stances as  would  be  equal  to  a  second  witness. 

The  above  are  the  oidy  instructions  requiring  any  note,  as  the 
correctness  of  the  ruling  in  the  others  cannot  be  disputed.  The 
instruction  in  reference  to  a  reasonable  doubt  is  faulty  and  sub- 
ject to  criticism.  It  should  have  been  followed  by  a  more  pre- 
cise and  accurate  explanation  of  the  terms,  so  as  to  have  prevented 
niisapprehensions,  as  was  done  in  the  case  of  T/ie  State  v.  JVues- 
Jcin,  25  ]\[o.,  Ill,  and  which  has  been  universally  followed  since 
that  time. 

The  fourth  instruction  asked  bv  the  defendant  stated  the  law 
too  broadly,  and  was  properly  refused.  Says  Greenleaf :  "  In 
proof  of  the  crime  of  perjury  also  it  was  formerly  held  that  two 
witnesses  wore  necessary,  because  otherwise  there  would  be  noth- 
ing more  :han  the  oath  of  one  man  against  another,  upon  which 
tlie  jury  could  not  safely  convict."  I3ut  this  strictness  has  long- 
since  been  relaxed;  the  true  principle  of  the  law  being  merely 
this,  that  the  evidence  must  be  something  more  than  sufHcient  to 
counterl)alance  the  oath  of  the  prisoner  and  the  legal  presump- 
tion of  his  innocence.  The  oath  of  the  o])posing  witness,  there- 
fore, will  not  avail,  uidess  it  be  corroborated  by  other  independ- 
ent circumstances.  I»ut  it  is  not  precisely  accurate  to  say  that 
these  additioiuil  circumstances  must  be  tantamount  to  another 
witness.  The  same  ell'ect  being  given  to  the  oath  of  the  prisoner 
as  tliough  it  were  the  oath  of  a  credible  witness,  the  scale  of  evi- 
dence is  exactly  balanced,  and  the  e(|uili])rium  must  be  destroyed 
by  material  and  inde]>endetit  circumstances,  before  the  ] tarty  can 
be  convicted.  The  additional  evidence  need  not  be  such,  as  stand- 
ing by  itself,  would  justify  a  conviction  in  a  case  where  the  tes- 
timony of  a  single  witness  would  sutKce  for  that  ])urpose;  but  it 
must  be  at  least  strongly  corroltorative  of  the  testimony  of  the 
accusing  witness;  or  in  the  quaint  but  energetic  language  of 
Paukkk,  C  J.,  a  "strong  and  clear  evidence,  and  more  numer- 
ous than  the  evidcce  given  for  the  defendant"  (1  Greeul.  Ev., 


)0-l 


AMERICAN  CRIMINAL  REPORTS. 


t< 


'>i' 


I   ."t 


h 


257).  The  instruction  was  an  attempt  to  apply  the  ancient  rule 
Avliich  lias  been  modified  and  relaxed,  and  no  lon<;er  prevails  in 
any  of  the  courts. 

The  first    instruction    which  was    given   for  the   defendant, 
whilst  mainly  stating  the  law  correctly  was  not  as  clear  and  ex- 
plicit as   it  should  have  been.     It  is  true,  as  it  was  given  for 
the  defendant  he  cannot  complain;  but  in  cases  of  this  kind,  we 
examine  the  whole  record  to  see  whether  justice  has  been  done, 
and  it  will  therefore  become  necessary  to  examine  it  in  connec- 
tion with  the  first  instruction  given  at  the  instance  of  the  state. 
That  instruction  made  no  allusion  to  the  character  of  the  crime, 
nor  to  the  peculiar  amount  of  evidence  retpiired.     It  was  such 
an  instruction  as  would  luAebeen  given  in  an  ordinary  case,  and 
made  it  only  necessary  for  the  jury   to  be  satisfied  by  the  evi- 
dence <»f  the  defendant's  guilt.     The  instructit>n  was  clearly  and 
wholly  bad,  and  should  not  have  been  given.     It  was  to  some  ex- 
tent cured  by  the  defendant's   instruction,  but  not  entirely  so. 
There  was  an  inconsistency  as  to  the  amomit  of  proof  rerpiired; 
and  we  cannot  tell  what  efiect  it  had  upon  the  junjrs.     "When  we 
consider  that  the  bad  instruction  was  given   ft»r  the  state,  and 
that  the  state  had  the  closing  of  the  case,  we  can  readily  see  how 
the  defendant  could  have  been  injured. 

It  cannot  be  said  in  this  case  that  the  instructions,  even  taken 
together,  fairly  presented  the  law. 

I  thiidv  therefore  that  the  judgment  should  be  reversed  and 
the  cause  remanded;  all  the  judges  concur,  except  Judge  Siii;k- 
AvooD,  who  is  absent. 


IIkmuree  vs.  State. 

02  Gil.,  242.) 
Peiwuuy:    ludktmcnt. 


Whero,  in  an  indictment  fur  iicrjnry,  it  was  iiUcged  that  the  cleftimhint,  dur- 
ing a  judicial  procoediny:,  etc.,  had  falsely  sworn  to  certain  statonu'nt--,  and 
then  ininicdiately  followed  an  alleviation  that  certain  of  such  statenii'nth 
were  untrue,  and  tliere  was  no  alle;ration  that  the  statements,  tlais  alone 
denii'tl  to  Ijo  true,  had  been  material  to  the  issue  on  trial,  nor  did  they  of 
thonisclvfs  ajipear  to  have  Lci-n  material:  Held,  that  the  indictment  wa^ 
dcnuu'rable,  and  should  have  been  quiuihed. 


ncicnt  rule 
prevails  iu 

•lofeudaut, 

lar  anil  ex- 

•fiven  for 

s  kiiid,  we 

)een  done, 

in  connec- 

tlic  state. 

tli(!  crime, 

\v;is  sueli 

\'  case,  and 

y  the  evi- 

'learly  and 

;o  some  e.\- 

ntiroly  so. 

required; 

"When  we 

state,  and 

ily  see  how 

even  taken 

rersed  and 
idge  SiiKU- 


tmlant,  diir- 
tenii'iit.^,  and 

1  Stiltl'lUl'lltti 
:,  llniH    illillli' 

ilid  tlu'y  of 
ictiucut  wad 


HEMBREE  v.  STATE. 


605 


(1 

«4' 


CuiMixAL   Law.       Indictment.       Perjury.       Before    Judge 
K-NKurr.      MUtoii  Superior  Court.     August  Term,  1873. 

George  Ilemhree,  was  placed  on  trial  for  the  oft'ense  of  per- 
jury, upon  the  following  indictment: 
Gkokoia  —  Milton  county. 

•The  grand  jurors,  selected,  chosen  and  sworn  for  the  county 
of  ^[ilton,  to  wit: 

"  In  the  name  and  behalf  of  the  citizens  of  (Jeori'ia.chara'e  and 
accuse  (ieorge  llemhree,  of  the  ct)unty  and  state  aforesaid,  with 
the  ofi'ense  of  jterjury.  For  that  the  said  George  llembree,  in 
^•A\i\  county,  on  the  23d  day  of  August,  1871,  wickedly  and  ma- 
licioutily  intending  to  aggrieve  one  IMartha  (ioen,,and  put  her, 
the  said  ^Nfartha  Goen,  to  great  expense,  and  to  bring  upon  her, 
tlie  said  Martha  (roen,  great  disgrace,  and  also  to  cause  her,  the 
said  !^[artha  (Joen,  to  snft'er  the  penalty  of  the  law  consequent 
upon  a  conviction  of  the  otiense  of  living  with  one  William 
^lartin,  a  male  ])erson  of  color,  in  a  state  of  fornication,  a  bill 
of  indictment  for  which  offense  being  then  and  there  submitted 
to  the  grand  jury  of  said  county,  said  superior  court  being  then 
and  there  in  session,  charging  said  ]\[artha  Goen  and  William 
Martin  with  living  together  in  a  state  of  fornication,  said  Alartha 
(loen  being  then  and  there  a  white  female;  the  said  George 
llembree,  on  the  day  and  year  aforesaid,  in  the  county  aforesaid, 
and  in  })ropei  person  before  said  grand  jury,  one  Marian  J. 
Seall,  then  and  there  being  foreman  of  said  grand  jury,  and  iu 
due  form  of  law,  was  sworn  and  took  his  corporal  oath  u])on  the 
liible  concerning  the  truth  of  the  testimony  he  should  then  and 
there  give  said  grand  jury,  as  to  the  truth  of  the  charge  in  said 
bill  of  indictment  then  and  there  contained,  said  foreman  of  said 
grand  jury  then  and  there  being  legal  and  competent  authority 
to  administer  said  oath  to  the  said  George  Ifembree  for  said 
purposes.  The  said  (leorgc  IIend)ree  being  then  and  there  so 
sworn,  as  aforesaid,  then  and  there  upon  his  oath  aforesaid,  be- 
fore the  said  gran<l  jury  (said  grand  jury  then  and  there  having 
competent  authority  to  administer  said  oath  and  to  hear  said 
evidence  in  that  behalf),  wilfully,  knowingly,  absolutely,  falsely, 
in  his  testimony,  did  then  and  there  swear,  among  other  things, 
in  substance  and  to  the  effect  following,  to  wit:  "I  went  to 
Mrs.  ^lartin's  to  get  some  soap;  as  I  went,  I  saw  James  Martin 
iu  the  field  plowing;  I  went  to  him;  as  I  went  I  saw  Mrs. Goen 


606 


AMERICAN  CRIMINAL  REPORTS. 


fi'      1    lUi 


\< 


I  i'r  f,  (■■ 


going  a  round-about  way  towards  TJill  Martin.  I  tliouylit 
something  was  going  to  happen,  and  I  got  up  on  the  fence,  and 
saw  them  meet  in  the  phim  orchard.  Mrs.  Goen  lay  down  and 
pulled  up  her  clothes;  ]}ill  then  got  on  her.  I  then  left  the 
fence  and  went  to  the  house;  Mrs.  Goen  then  came  to  the  house; 
I  know  it  was  her  I  saw.'  Whereas,  in  truth  and  in  fact,  the 
eaid  IVfartha  Goen  did  not  then  and  there  go  to  said  plum 
rcliard,  nor  meet  one  Bill  Martin,  as  aforesaid,  and  so  the  jur- 
'■.  ,  upon  their  oaths  aforesaid,  do  say  that  the  said  George 
llembree,  on  said  23d  day  of  August,  1S71,  in  the  county  afore- 
said ■  th'-'  said  grand  jury  then  and  there  having  such  competent 
authovitv  to  .'.dminister  said  oath  as  aforesaid),  hy  his  own  act 
and  consent,  and  after  his  own  wicked  and  corrupt  mind,  in 
manner  ami  form  aforesaid,  wilfully,  knowingly,  absolutely  and 
falsely,  did  commit  the  offense  of  perjury,  contrary,"  etc. 

The  defendant  demurred  to  the  indictment.  The  demurrer 
was  overruled  and  the  defendant  excepted. 

T.  31.  I*e(j^les,  Irioiti,  Anderson  dh  li'iohi,  for  plaintiff  in 
error.  C.  J.  WelJhovn,  solicitor  general,  by  C.  D.  PhiUq)S. 
27iomas  F.  Greer,  for  the  stat*.. 

McCay,  J,  It  is  the  settled  rule  that  the  indictment  in  a 
charge  of  ]ierjnry  must  show  that  the  thing  falsely  sworn  to  was 
material  tu  the  issue  on  trial.  3  Greenl.  Ev.,  ISO.  Under  our 
statute,  ])erhaps,  it  is  sufficient  if  this  appear  from  the  M'ords 
themselves,  as  set  out,  though  there  be  no  aUetjation  that  they 
were  material.  Code,  sec.  4(!28-9.  In  this  case  were  the  whole 
of  the  words  negatived;  were  it  charged  that  all  the  words  spo- 
ken were  untrue,  the  words  might  be  taken  to  be  material,  on 
their  face,  to  the  issue  as  described  in  the  bill  of  indictment,  for 
though  they  assert  oidy  one  act,  they  would  be  nuiterial,  with 
other  acts,  to  make  out  the  charge  (jf  living  in  fornication. 

But,  singularly  enough,  the  indictment  does  not  negative  the 
principal  statement,  and  by  selecting  the  others  and  negativing 
tlicm,  the  inference  is  open  that  the  ])rin^'ipal  statement  is  true. 
It  may  liave  been  material  to  show  that  the  wonnm  charged  did 
go  to  that  ])articular  field  that  day,  and  meet  the  man  she  is 
charged  to  have  been  living  with  in  a  state  of  fornication,  but  it 
is  not  ai)parent,  by  the  words  themselves,  that  they  were  mate- 
rial.   Whilst  we  are  no  friends  of  technical  rules,  there  are  yet 


PEOPLE  V.  HUXCKELER. 


507 


thouylit 
fence,  iiinl 
down  and 

I  left  the 
tlioliouse; 

fact,  tlio 
uid  |)lniu 
o  tlic  jur- 
d  Geor^'o 

II  ty  ufore- 
coinpetont 

s  own  act 

mind,   in 

Intoly  and 

te. 

doniuiTor 

iliiintifl'  in 


nicnt  in  a 
r>rii  to  was 
[Inder  onr 
tlie  words 
tliiit  tlicy 
tlio  whole 
i'ords  spo- 
aterial,  on 
inont,  for 
n-ial,  wirh 
ion. 

native  the 
f'Mtivin'' 
it  is  true. 
!iri,'ed  did 
III  she  is 
jn,  but  it 
3re  inate- 
•c  are  yet 


limits,  especially  in  criminal  cases,  beyond  which  it  is  not  safo 
to  go,  and  we  think  it  mnst  always  be  alleged  that  the  words 
sworn  were  material,  or  they  must  in  the  nature  of  them,  show 
their  own  materiality.  That  U  one  of  the  statutory  in<;redients 
of  the  crime,  and  it  can  no  more  be  dispensed  with  than  the  al- 


legation that  the  words  were  false. 


Jxuhjment  reversed. 


Pkoplk  vs.  IIunckeleb. 
(48  Cal.,  ajl.) 
PiiACTiCE :    Former  jeopanhj. 

Whore  a  person  has  once  been  put  on  tiial  for  nianshiugliter,  before  a, jury  im- 
puneled  and  sworn,  ami  \  itne.s.ses  have  bet;n  examined,  ho  hiis  been  put 
in  jeopardy,  and  Lf  the  judye,  wthout  the  consent  of  the  resiwndent,  dLs- 
charp!  tlie  jury  v-itliout  submitting  the  case  to  them,  this  is  a  bar  to  any 
furtlier  prosecution  for  tlie  same  act,  and  he  cannot  afterwai'ds  be  tried  ou 
an  uuUctment  for  mm'der  for  the  same  killing. 

Ai'i'KAr.  from  the  District  Court,  twelfth  judicial  district,  City 
and  County  of  Sun  Francisco. 

The  defendant  was  indicted  on  the  10th  day  of  February, 
1ST4,  for  murder,  alleged  to  have  been  committed  by  killing 
Catharine  Erni,  at  the  city  and  county  of  San  Francisco,  on  the 
ITth  day  of  September,  1873. 

The  defendant,  when  arraigned,  pleaded  a  former  acquittal, 
former  jeopardy,  and  not  guilty.  On  the  trial  it  was  shown  that 
on  the  15th  day  of  December,  1873,  the  defendant  was  arraigned  in 
.said  court  on  an  indictment  charging  him  with  the  crime  of  man- 
slaughter, committed  by  having  killed  the  said  Catharine,  and 
])leaded  not  guilty.  That,  on  the  —  day  of  January,  1871:,  he  was 
]>laced  upon  his  trial  for  manslaughter,  before  a  jury  duly  impan- 
eled and  sworn,  and  that,  after  the  witnesses  for  the  prosecution 
and  defense  had  been  sworn  and  examined,  the  court,  without  the 
consent  of  the  defendant,  on  motion  of  the  district  attorney,  dis- 
charged the  jury,  and  remanded  the  defendant  to  the  custody  of 
the  sherifl",  so  that  an  indictment  might  be  found  for  a  higher 
crime.  The  indictment  on  wliich  the  judgment  was  rendered, 
from  which  this  appeal  was  taken,  was  afterwards  found.  On 
the  second  trial,  the  defendant  asked  the  court  to  instruct  tlie 


I) 


N 


508 


AMERICAN  CRIMINAL  REPORTS. 


J  f  1 

I-*-' 


^ 


jnry  that  if  they  found  that  the  defeiKhint  hail  been  formerly  in- 
dieted  for  manslaughter  committed  by  killing  Catharine  Krni, 
and  had  been  placed  on  his  trial  before  a  jtiry  duly  imjianeltd 
and  sworn,  and  that  the  court  had  discharged  the  jury  without 
a  verdict,  without  the  consent  of  the  defendant,  in  order  that  an 
indictment  miifht  be  found  against  him  for  a  higher  crime,  that 
they  should  accjuit  the  defendant.  The  court  refused  to  give  tJio 
instruction. 

Section  one  tluuisand  one  hundred  and  t\velve  of  the  Penal 
Code  reads:  "  If  it  appears  by  the  testimony  that  the  facts 
proved  constitute  an  otl'enseof  a  higher  nature  than  that  charged 
in  the  indictment,  the  court  may  direct  the  jury  to  be  discliargeil, 
and  all  ]>roceedings  on  the  indictment  to  be  8uspen<le(l,  and  may 
order  the  defendant  to  be  committed  or  continued  on,  or  admit- 
ted to  bail,  to  answer  any  indictment  which  maybe  fcjund  against 
him  for  the  higher  oflense.  If  an  indictment  for  the  higher  of- 
fense is  found  by  the  grand  jury,  impaneled  within  a  year  next 
thereafter,  he  must  be  tried  thereon,  and  a  plea  of  a  former  ac- 
quittal, to  such  last  found  indictment  is  not  sustained  by  the 
fact  of  the  discharge  of  the  jury  on  the  first  indictment." 

Section  one  thousand  aiul  twenty-one  reads:  '"If  the  defend- 
ant was  formally  ac(]uitted  on  the  ground  of  variance  between 
the  indictment  and  the  proof,  or  the  indictment  was  dismissed 
upon  an  objection  to  its  form  or  substance,  or  in  order  to  hold 
the  defendant  for  a  higher  ott'ense,  without  a  judgment  of  ac- 
quittal, it  is  not  sin  ac<|uittal  of  the  sanje  oflense."  The  motion 
of  the  district  attorney  to  dismiss  the  jury  was  based  on  these 
sections.  The  defendant  was  convicted  of  manslaughter,  and 
appealed. 

Jo/iii  If.  D'u'khison,  for  the  appellant,  argued  that  sections 
one  thousand  one  hundred  and  twelve,  and  one  thousand  and 
twenty-one  of  the  Penal  Code  were  in  conflict  with  section 
eight,  article  one,  of  the  constitution  of  this  state;  and  cited 
People  V.  Coleman,  4  Cab,  40;  Ex  parte  Iloffiaan,  44  id.,  35; 
Peojtle  V.  OlweU,  28  id.,  400;  Peo2)le  v.  Wchh,  38  id.,  407; 
Cooley's  Cons.  Lim.,  325;  People  v.  Cage,  4-8  Cal,  323;  U.  S.  v. 
Keene,  1  McLean,  431;  3  Co.  Lit.,  538;  I  Bisli.  Crim.  Law, 
1030  and  1040;  Whart.  Cr.  Law,  sees.  577  to  587;  and  People, 
V.  Goodwin,  18  Johns.,  203. 

C.  B.  Darwin,  also  for  the  appellant,  argued  that  section  one 


merly  in- 
•ino  Erni, 
iiiij)iiiielo(l 
y  without 
t'l*  tliiit  an 
I'ime,  tliiit 
ogive  tlio 

lie  ronul 
the  facts 
it  cliaryod 
i.scharift'(l, 
iind  may 
or  admit- 
idai^aiiist 
lii^'herof- 
year  next 
n'liier  ac- 
id  by  the 

D  defend- 
between 
Jifijnissed 
ir  to  hold 
int  of  uc- 
0  niution 
on  the&e 
iter,  and 

;  sections 
sand  and 
li  section 
vnd  cited 
A  id.,  35; 
id.,  407; 
C'.  S.  V. 
ini.  Law, 
d  PcojjU 

ction  one 


PEOPLE  V.  HUNCKELER. 


509 


thousand  one  hundred  and  twelve  of  the  Penal  Code  should  be 
so  construed  as  to  make  the  crime  "of  a  higher  degree"  mean 
a  crime  of  a  diti'erent  nature. 
T.  P.  Jitl^tn,  for  the  people. 

JIc'lvr.NSTiiv,  J.  '•  Xo  person  shall  be  subject  to  be  twice  put 
in  jeopardy  for  the  same  ofl'ense."     Const.,  art.  1,  sec.  S. 

This  language  is  mure  than  the  equivalent  of  "  no  person  shall 
Ije  twice  tried  for  the  same  offense."  1  Ijish.  Cr.  Law,  lOlS, 
5th  ed.  A  defendant  is  placed  in  apparent  jeopardy  when  he 
is  placed  on  trial  before  a  competent  court  and  u  jury  impaneled 
and  sworn.  J  lis  jeoi)ardy  is  real,  unless  it  shall  subsecpiently 
appear  that  a  verdict  could  never  have  been  rendered  by  x-easou 
of  the  death  or  illness  of  the  judge  or  a  juryman,  or  that  after 
due  deliberation  the  jury  could  not  agree,  or  by  reason  of  some 
other  like  overruling  necessity  which  compels  their  discharge 
without  the  consent  of  the  defendant.  Peojde  v.  Wcbh,  3S  Cal., 
407,  and  cases  there  cited.  And  when  a  person  has  been  placed 
in  actual  jeopardy,  the  jeopardy  cannot  be  repeated  without  his 
consent,  v>-hatevcr  statute  may  exist  on  the  subject.  1  Bish.  Cr. 
Law,  1200,  5th  ed.  Once  in  actual  jeojjardy,  a  defendant  be- 
comes entitled  to  a  verdict  which  may  constitute  a  bar  to  a  new 
jM'osecution;  and  he  cannot  be  deprived  of  his  right  to  a  verdict 
by  nollt }}roHe<iui  entered  by  the  prosecuting  officer,  or  by  a  dis- 
charge of  the  jury,  and  continuance  of  the  cause.  Cooley 
Const.  Lim.,  327. 

A  person  cannot  l)e  twice  in  jeopardy  for  the  same  offense; 
but,  in  the  cases  to  which  we  have  referreu,  the  hap])ening  of 
the  snbsetpient  event  which  renders  the  discharge  of  the  jury 
necessary,  shows  that  the  defendant  has  never  been  in  actual 
jeopardy. 

In  the  case  before  us,  however,  it  is  not  pretended  that  a  ver- 
dict could  not  have  been  rendered  at  the  first  trial.  The  mere 
opinion  of  the  district  judge  that  the  evidence  showed  the  de- 
fendant to  be  guilty  of  a  higher  degree  of  crime,  was  not  such 
a  necessity  as  recpiired  the  discharge  of  the  juiy,  or  authorized 
a  retrial  of  the  defendant  for  the  same  offense. 

Judgment  reversed  and  ciuise  remanded,  with  direction  to  dis- 
charge the  defendant. 

Rhodes,  J.,  did  not  express  an  opinion. 


:iif 

i 

'     ;.l 

< 

1 

J 

^i 


510 


AMERICAN  CRIMINAL  REPORTS. 


t   f 


Jones  vs.  State. 

(.^5  Ga.,  625.) 

PnACTicE:    Fornu'i'jeopnrHij. 

The  respondent  was  indii'teil  for  larceny,  and  while  Ix-uiff  tried,  a  mile  jmis'. 
was  entevfil  on  that  indictment.  He  was  then  indictfd  for  lmrf,'hirj-  on  the 
same  transaction,  and  to  this  indictment,  pleaded  his  former  jeopuidy. 
Held,  tluit  till!  plea  was  good,  and  a  bar  to  fiu'ther  prosecntioii. 

Jackson,  J.  The  defendant  Avas  indicted  for  simple  larceny 
and  put  on  trial.  The  indictment  was  ytol.  j^romnl  without  hid 
consent,  on  the  ground  that  the  day  on  which  the  ofl'ense  was  laid 
was  an  imjiossihle  one,  being  subsecpient  to  the  trial.  He  was 
tlien  indicted  for  burglary  in  the  same  transaction,  and  pleaded 
his  former  jeopardy  on  the  indictment  for  larceny.  The  court 
overruled  the  plea,  and  he  m'hs  convicted  of  the  burglary.  A 
motion  for  a  new  trial  was  made  on  this  ground,  and  other 
grounds  disclosed  in  the  record.  That  motion  was  refused  by 
the  court,  and  this  refusal  to  grant  the  new  trial  is  Jie  error 
complained  of. 

In  the  view  we  take  of  the  case,  it  is  unneccsary  to  consider 
any  ground  of  the  motion,  except  the  overruling  this  plea  of  fdv- 
raer  jeopardy. 

1.  The  first  question  is,  Was  the  indictment  for  larceny  good, 
or  was  it  bad,  because  an  impossible  day  was  laid?  Tliis  is  not 
an  open  question  with  us.  It  had  been  ruled  before,  and  was 
ruled  again  at  the  last  term,  in  the  case  of  Williams  v.  T/14)  State. 
"Wc  there  held  the  indictment  good. 

2.  This  indictment  being  good,  the  defenda;;t  was  in  jeopardy; 
his  case  had  gone  to  the  jury,  and  could  not  be  withdrawn  with- 
out liis  consent,  at  the  option  of  the  state,  by  entering  a  nolle 
proseqni.  Such  withdrawal  was  equivalent  to  an  acquittal  uE 
the  charge  of  simple  larceny.  Reynohh  v.  The  State,  3  Ga., 
53,  09;  Code,  sec.  4049. 

3.  Ilis  plea  of  former  jeopardy  alleges  that  the  prosecution  for 
burglary  is  on  the  same  transaction,  or  for  the  same  offense. 
The  demurrer  admits  its  truth.  If  true,  he  was  about  to  be  tried 
for  the  same  offense,  tlie  same  transaction,  under  .1  different 
name.  It  has  been  repeatedly  held  by  this  court  that  this  can- 
not be  done  under  our  constitution.     Code,  sec.  5000;  Rohcrts 


i  n 


RKGINA  V.  SMITH. 


511 


a  noUe  j>ro/t. 

ffrliiry  on  tlio 

'»•  jt'opaiily. 


larcoiiv 
ntliout  Iiiti 
so  was  laid 
.  lie  was 
ul  i)lea(le(l 
The  court 
•^'laiy.  A 
and  otlier 
refiist'(l  l)y 
8  1  ho  error 

^o  consider 
plea  of  fur- 

?cny  fjjood, 
riiis  is  not 
o,  and  was 
T/u)  State. 

jeopardy ; 
awn  with- 
n<^  a  nolle 
.'quittal  of 
tte,  3  Ga., 

3ntion  for 
c  offense, 
o  l)e  tried 
i  diftereiit 
;  this  can- 
;  liolcrts 


and  Coj)enliii(jeii  v.  The  State,  14  Ga.,  8,  11,  12;  Coj)en/ia- 
<je)iv.  The  State,  15  id.,  200;  Holt  v.  The  State,  38  id.,  187, 
ISO,  190;  Jilack  v.  The  State,  30  id.,  -1-17,  loO;  see,  also,  1  JJish. 
Cr.  L.,  0S3,  08S,  OSO;  Hop.  Ann.  P.  L.,  sees.  1574,  1575,  1577, 
et  seq.  We  think,  therefore,  that  upon  authority,  in  our  own 
state  particularly,  inasmuch  as  the  plea  alleged  the  same  oti'enso 
in  the  sinnde  larceny  charge  as  in  the  subsecpient  charge  of  burg- 
lary, and  as  the  court  struck  out  the  plea  on  demurrer  which  ad- 
mitted that  the  oU'ensc  or  transaction  was  the  same,  the  court 
erred,  and  the  new  trial  should  have  been  granted  on  this  ground 
in  the  motion.  Jiidymeiit  reversed. 


Rkoina  vs.  Smith. 

(34  U.  C.  Q.  B.,  140.) 

Indictment  fou  !Mukder:    Cotmction  for  assault.    32-33  Vic,  ch.  20,  sec.  51. 

On  an  indictment  for  murdor  in  the  statutory  form,  not  charging  an  assault,  the 
prisoner,  under  ;{'2-3!>  Vie.,  ch.  29,  sec.  51,  cannot  be  convicted  of  an  assault, 
and  hi.s  acquittal  of  the  felony  is  therefore  no  bar  to  a  subsequent  indictment 
for  the  assiult. 

Peu  Wii.sox,  J.  In  this  case  there  could  have  been  no  conviction  for  the  as- 
.«ault,  because  the  evidence  upon  the  trial  for  nmrder  showed  that  it  did  not 
conduce  to  the  death. 

Case  reserved  from  the  court  of  general  sessions  of  the  peace 
for  the  county  of  York,  by  John  Boyd,  Eeq.,  junior  judge  of  the 
county  court. 

The  defendant  was  indicted  for  an  assault  on  John  Currie,  oc- 
casioning actual  bodily  harm. 

The  defendant  pleaded  that  at  the  assizes,  liolden  at  Toronto, 
in  and  for  the  county  of  York,  he  was  "  lawfully  acquitted  of  the 
said  ofFense  charged  in  the  indictment." 

The  crown  traversed  the  plea,  and  the  prisoner  joined  issue. 

At  the  trial  before  the  learned  county  judge,  the  record  of  an 
acquittal  upon  an  inuictment  for  the  charge  of  murder  was  pro- 
duced. 

The  indictment  charged  that  one  Lounsborough  and  the  de- 
fendant "did  feloniously,  wilfully  and  of  their  malice  afore- 
thouffbt,  kill  and  murder  one  Thomas  Currie."    Nothing  was 


013 


AMERICAN  CIinriNAL  REroilTS. 


ii»n 


3r 


innde,  or  ik'sired  to  lie  mndo,  of  the  difrerenco  in  tlio  name  he- 
tween  Jolin  (/urric  in  the  assault  indictment  and  Thomas  in  tho 
murder  indictment. 

Tlie  following'  evidence  was  also  given: 

Jo/i/i  K.  Kinnahj  said:  "  I  was  a  witness  at  the  trial  at  tlic 
last  assizes  i'(»r  the  murder  of  Currie.  The  prisoner  is  the  indi- 
vidual, Smith.  1  was  one  of  the  medical  men  who  held  w  ixtxt 
mortem  examination  on  the  body  of  Currie.  There  was  an  ahni- 
eion  across  the  bridj^e  of  the  nose  and  under  the  right  eye.  I 
could  not  positively  say  what  caused  «leath;  I  could  not  say  tliiit 
death  was  or  was  not  caused  by  external  injuries.  1  stated  at 
the  trial  (ft>r  murder),  from  the  appearance,  we  were  'H»t  satis- 
Hed  that  death  was  not  caused  by  natural  causes,  ace  ted  by 
exposure." 

I)f?in/',s  Unlhert  said:  '•  I  was  a  witness  at  tho  trial  of  Smith 
for  murder;  I  knew  Currie.  The  day  of  the  death  of  Currie,  I 
saw  ])ris(iner  make  a  juotion  to  hit  (/urrie,  but  he  was  down;  I 
saw  Lounsborough  take  him  by  the  hair  of  the  head  and  kick 
him;  the  prisoner  struck  at  him,  but  1  could  iu)t  say  whether  he 
hit  him  or  )U)t.  I  gave  tho  same  evidence  at  tho  assizes;  I  did 
not  thiidc  it  was  very  serious.  They  wore  not  long  at  him;  1  did 
not  think  they  had  ])eaten  him  badly." 

The  learned  county  judge  directed  a  verdict  for  the  crown 
upon  the  issue  joine<l,  which  was  rendered,  and  the  case  was  re- 
served for  the  opinion  of  this  court,  tho  learned  judge  asking 
"Whether,  on  this  statement  of  facts,  and  the  questions  of  law 
arisiiig  therefrom,  tho  defendant  could  have  been  lawfully  in- 
dicted for  assault  on  Currie  after  having  been  ac(|uitted  on  the 
indictment  for  his  murder;  and  whether  my  direction  to  enter 
a  verdict  for  the  crown  on  the  above  plea  of  auttHfois  acujuUwuA 
right." 

In  this  term,  31.  C.  Cameron,  Q.  C,  argued  the  case  for  tho 
defendant. 

The  Consol.  Stat.  C,  ch.  99,  sec.  C6,  provides  that,  "on  the  trial 
of  any  person,  *  *  for  any  felony  whatever,  where  the  crime 
charged  includes  an  assault  against  the  person,  the  jury  may  ac- 
quit of  the  felony,  and  find  a  verdict  of  guilty  of  assault  against  the 
person  indicted,  if  the  evidence  warranted  such  finding."  The 
act  of  1809,  32-33  Vic,  ch.  29,  sec.  51,  D.,  has,  preceding  the 
words,  "the  jury,"  in  the  section  quoted,  the  words,  "although 


IIKGINA  r.  SMITH. 


5i:i 


!  naiiio  he- 
•nms  in  tho 


trial  at  tlio 
rt  tlie  iiidi- 
held  a  imst 
ii.s  an  ul)r:i. 
(ht  eye.  I 
(jt  t^ay  that 
.  statod  at 
'H»t  satis- 
ted  hy 

il  of  Smith 
'  Curric,  I 
IS  down ;  I 
1  and  kick 
whether  he 
ize.s;  I  did 
him;  1  did 

the  crown 
ase  was  I'e- 
li'C  askinir 
ons  of  law 
iwfully  in- 
ied  on  the 
m  to  enter 

ase  for  the 

in  the  trial 
!  the  crime 
ry  may  ac- 
against  the 
nir."  The 
ceding  the 
"  although 


an  assault  be  not  charged  in  terms."  The  punishment,  under 
tiic  ])resent  act,  may  bo  for  live  years;  the  nniximnni  under 
the  former  act  was  three  years.  In  other  respects  the  enact- 
ments are  alike.  The  case  of  liKjtnd  v.  (liimsy  vt  <iK,  22  C. 
P.,  1S5,  followed  the  decision  of  /uf/lna  v.  Jili'i/,i)  Cox  (J.  C,  1; 
2  Den.  C  C,  94,  and  determined  that  on  an  indictment  for  mur- 
der, since  tho  act  of  ISIJl)  was  j)as8ed,  the  person  charged  with 
the  murder  co\ild  not,  on  an  acipiittal  of  the  felony,  be  convicted 
of  an  assault  which  did  not  conduce  to  the  death  of  the  person 
who  was  killed.  The  meaning  of  tho  enactment  is,  that  the  jury 
may  convict  of  an  assault  if  the  evidence  shows  one  to  have  been 
committed,  however  tho  indictment  may  bo  framed;  that  is, 
whether  it  charges  an  assault  or  not. 

Jlr/itnzu',  Q,  C,  cont/u:  The  evidence  shows  there  was  no 
homicide  committed,  independently  of  the  ac(piittHl  itself.  The 
medical  testimony  was:  "  AVe  were  not  -atistied  that  death  was 
not  caused  by  natural  causes  accelerated  by  exposure."  That  bein;^ 
so,  tho  defendant  could  not  have  been  convicted  of  an  assault 
upon  the  indictment  fi>r  murder,  according  to  the  two  cases 
which  have  been  cited,  because  no  such  assault  could  have  con- 
duced ti » the  death  of  Currie.  The  defendant  was  therefore  rightly 
convicted  <»f  an  as-^ault  at  the  general  sessions  of  the  peace,  lie 
was  never  before  acquitted  of  that  assault,  because  it  was  never 
charged  upon  or  provable  against  him  in  respect  of  the  i)rosecu- 
tion  for  the  murder.  The  itn])erial  act,  24  cV:  25,  A'ic.  ch.  1)5,  re- 
pealed the  corres])onding  provision  in  the  English  net,  on  which 
the  ([uestion  in  the  case  of  Jut/ inn  v.  Uii'd  arose.  In  the  act  of 
ISO!*,  ch.  20,  sec.  li),  murder  and  manslaughter  are  expressly  ex- 
cluded from  the  operation  of  that  section,  and  this  shows  that 
they  were  in  like  manner  excluded  from  the  operation  of  32-33, 
Yic,  ch.  29,  sec.  51,  D. 

IticuAUDs,  C.  J.  I  have  gone  over  carefully  the  case  of  licgl- 
na  V.  Jili'd^  referred  to  on  the  argument.  The  report  which  I 
have  of  it  is  in  2  Dan.  C.  C,  94.  1  tliiidc  all  the  judges  there 
concurred,  that  to  convict  of  an  assault,  when  the  indictment  is 
foi  felony,  the  indictment  must  be  for  a  felony  which  necessarily 
includes  an  assault.  It  is  not  necessary  that  It  should  be  ex- 
pressly charged  on  the  face  of  the  indictment.  It  will  be  suf- 
ficient if  the  felony  charged  must  of  necessity  include  an  assault. 
Vol.  l,-^ 


1 


514 


AMERICAN  CRIMINAL  REPORTS. 


"  «^c    «S 


The  crime  of  rape,  and  cutting  and  wounding  with  intent,  etc., 
are  instances  of  the  latter  proposition;  although  there  it  is  not 
unusual,  and  perhaps  better,  expressly  to  charge  an  assault  in 
the  indictment. 

But  in  murder  and  manslaughter,  it  is  necessary  to  do  so,  for 
murder  and  manslaughter  do  not  necessarily  include  an  assault. 
The  case  of  death  by  poison,  or  by  criminal  omission,  are  in- 
stances of  this.     See  the  judgment  of  Alderson,  1>.,  at  p.  190. 

The  same  learned  judge  at  p.  126,  in  reply  to  an  oDservation 
of  counsel,  that  the  words  in  the  statute  need  not  mean  the  crime 
averred  on  the  face  of  the  indictment,  said:  "Xo,  it  means  such 
crime  as  in  its  nature  includes  an  assault,  even  though  that  as- 
sault is  n(»t  expressly  averred  in  the  indictment:  Thus,  man- 
slaughter may  or  may  not  include  an  assault;  a  nuvnslaugliter 
by  blows,  etc.,  does  so,  and  nuuislaughter  by  negligence,  etc., 
does  not.  8o  administering  poison  with  intent  to  murder  dues 
not  necessarily  include  .an  assault;  Ilefj'tna  v.  Dmpi  i\  1  C.  isi  K. 
17(>,  note  a.  It  was  for  this  reason  that  the  judges  in  Heijiud  i. 
Jjinl,  2  Den.  C.  C.  04,  suggested  that  the  indictment  should  ex- 
pressly aver  an  assault  in  those  cases  to  which  the  statute  ap- 
plied.'' 

I  understand  that,  in  the  o])inion  of  all  the  judges  in  lixjtna 
V.  Ij'ti'd,  unless  the  crime,  as  charged  in  the  indictment,  iiichidod 
an  assault,  there  could  be  no  conviction  of  an  assault;  and,  in 
the  argument,  the  inference  was  made  and  oi)inion  exj)ressed, 
that  in  those  cases  where  the  crime,  such  as  rape,  etc ,  did  in- 
clude an  assault,  it  would  be  better  to  Jillege  an  assault. 

The  words  added  in  our  statute,  "  although  an  assault  be  r.ut 
charired  in  terms,"  mav  be  considered  as  a  le:;ii«lativL' (krlaratiou 
that  it  was  not  necessary  in  such  cases  to  charge  an  as>ault,  and 
therefore  .that  it  does  not  necessarily  change  the  projier  construc- 
tion of  the  section  from  what  it  was  before  the  amendment,  as  to 
the  necessity  of  charging  an  assaidt  in  ternjs  when  the  crime 
char''ed  in  the  declaration  does  not  necessarilv  include  anas- 
sault. 

Construing  the  section  and  amendment  strictly  in  the  light  of 
the  decid(id  cases,  I  think  we  must  hold  that,  when  the  indict- 
inent  is  for  murder  or  manshuighter,  the  accused  cann(.>t  be  con- 
victed of  the  assault,  without  an  assault  is  charged  in  terms. 

It  must  not  be  forgotten  that  in  deciding  this  case,  we  must 


iitent,  etc., 

•e  it  is  not 

assault  ill 

>  do  so,  f(jf 
an  assault. 
:>n,  are  in- 
t  p.  IW. 
>i»servatiou 
1  the  crime 
nouns  such 
;;h  that  as- 
'hns,  man- 
nslaughter 
,'ence,  etc., 
urder  does 
,  1  C.  .^  K. 
I  Ju'fjhtd  i. 
:  sliould  ex- 
statute  aj)- 

in  Ii<i/!/tti 
it,  iiKtluded 
dt;  and,  in 

e.\j)ressed, 
?tc ,  did  in- 
It. 

ault  he  i:ot 
di'cluratiou 
is>a\dt.  and 
r  eonstruc- 
iiiont,  as  to 

the  crime 
ude  an  as- 

lie  li<^ht  of 
the  indict- 
lut  l>e  con- 
terms. 
.',  we  must 


REGINA  V.  SMITH. 


515 


look  at  it  as  if  the  defendant  had  been  convicted  of  this  assault 
when  on  the  trial  for  the  felony,  in  which  event  he  woidd  have 
hoen  liable  to  a  much  more  severe  puuislnnent  than  if  convicted 
on  an  (rdi'.iary  indictment  charging  an  assault,  as  the  one  now 
befi»re  us  is. 

I  think  then,  in  this  view,  the  defendant's  plea  fails,  and  the 
conviction  in  the  session  must  be  sustained. 

As  to  the  other  (juestion,  though  doubtless  some  of  the  eight 
jii<1gts  who  compose  the  majority  in  JiinVs  Cxse  take  the  broad 
ground,  that  on  an  indictment  for  murder  or  nianshuighter,  the 
defendant  cannot  be  convicted  of  an  assault;  for,  if  the  assault 
contributed  to  the  death  of  the  person  charged  to  have  been  mur- 
dered, the  crime  is  either  manslaughter  or  murder,  or  nothing 
else.  I  do  not  find  that  all  the  judges  assented  to  that  view. 

Mr.  Justice  AVir.uTAf.VN,  who  concurred  with  the  majority  of 
the  judges,  said,  at  p.  1(!1»:  "If.  in  the  present  case,  it  had  ap- 
]ieared  that,  at  the  time  the  mortal  injury  was  received,  the  pris- 
oners were  with  the  deceased,  and  had  assaulted  and  beaten  her 
immediately  before,  but  tliat  the  evidence  raised  a  doubt  whether 
the  mortal  injury  was  occasioned  by  blows,  or  by  a  fall  which 
un"irht  be  attributed  to  accident,  and  on  that  ground  the  iurvhad 
aci[uitteil  the  prisoners  (»f  felony,  I  should  think  that  they 
might  be  convicted  nf  assault  under  tlie  statute,  for  in  that  case 
the  assault  proved  would  have  been  involved  in,  aiul  formed 
part  di',  tlie  act  or  transaction  charged  as  felony  in  the  indict- 
ment, and  prosecuted  as  such,  and  though  the  evidence  failed 
t(i  establish  it  as  a  felony,  it  was  the  oidy  transaction  which  was 
intended  as  felonious.  If  that  was  not  felonious,  there  was  no 
other." 

Again,  at  }).  ]>i7,  Pattis  i.v,  J.,  who  concurred  with  the  ma- 
jority of  the  judges,  said:  "  If,  indeed,  the  very  act  or  transac- 
tidu  \diich  the  c.-own  prosecutes  as  a  felony  turns  out  by  the 
evidence  not  to  be  felonious,  and  so  no  felony  at  all  is  proved, 
then,  if  the  ass;iult  be  proved  against  the  prisoner,  he  may  be 
ac(piitted  of  felony  and  convicted  of  assault.  And  this  may  be 
the  case  even  in  murder  or  manslaughter,  for  it  may  happen 
that  the  prisoner  has  severely  assaulted  the  deceased,  and  the 
death  may  have  been  supposed  to  have  been  the  result  of  such 
assault,  and  the  prisoner  may  have  been  indicted  for  murder  or 
manslaughter,  ii?uler  such  a  supposition,  yet  it  nuiy  turn  out  in 


"f^'^p 


AMERICAN  CRIMINAL  REPORTS. 


evidence  that  the  deceased  died  from  natural  cansos  not  occi- 
Bioned,  nor  even  afjgruvated  or  in  any  way  aft'ectetl,  hy  tlic  assault 
proved,  and,  in  such  a  case,  tlie  prisoner  might,  I  tliink,  be  con- 
victed of  an  assault. 

I  thiidv  the  doctrine  here  laid  down  might  ai)ply  to  the  case 
before  ns,  hut  it  is  not  necessary  to  decide  noAV  whether  the  de- 
fendant might  or  might  not  have  l>eon  convicted  of  the  assault 
on  an  iiidictment  properly  framed,  as  we  think  this  indictment 
was  not  so  framed,  and  he  could  not  have  been  convicted. 

The  broad  ground  taken  by  the  judges  who  dissented  from  the 
conclusion  arrived  at  by  the  majority  in  U'r/fx  Caxe  was,  th.-.t 
the  evidence  ofl'ered  on  behalf  of  the  crown  in  proving  the  assault 
was  so  offered  to  prove  a  felony;  and,  until  the  jury  j>ronouii('t(l 
upon  it  and  said  the  felony  Avas  not  pro\e(l,  the  accus'^'d  was  in 
jeopardy  as  to  the  felony  from  the  very  assault  so  jiroved,  ami 
the  jury  having  acquitted  of  the  felony  should  have  convicted  of 
the  assault,  if  the  accused  was  guilty  (vf  it.  If  he  was  not  guilty, 
then  the  general  verdict  of  not  guilty  should  free  him  from  agi/;n 
being  put  on  his  trial  f(n'  the  offense  which  was  proved  befoir. 

Of  course,  aJi  assault  six  months  befoi'c  the  death  of  the  j^arty 
and  which  had  nothing  to  do  with  it,  cotdd  not  be  brought  in; 
but  if  the  assault  was  just  aboiit  the  time  of  the  death,  and  it  was 
contended  and  attempted  to  be  proved  on  ])ehalf  of  the  cniwn 
ihat  it  did  occasion  the  death.  l»ut  failing  to  ])rove  that,  then  the 
case  contemplated  by  the  legislature  was  made  out. 

That  seems  to  have  been  the  genera)  view  of  the  disscnfini,' 
judges  in  that  case,  p-Tv^  were  it  not  Kthorwise  decided,  we  might 
suppose  it  to  have  been  the  reasonable  one. 

As  the  clause  of  our  statute  now  stands,  considering  the  (1(>- 
cisions  that  have  been  made  on  the  subject  in  England,  as  wrll 
as  in  this  countrv,  it  would  seem  to  be  of  little  value,  and  miirlit 
as  well  be  rej)ealed. 

In  the  American  edition  of  2  Den.  ('.  ('..  at  p.  VII.  Jiotc  A., 
referring  to  lictjiiKt  v.  Jh'djhi',  1  ('.  A:  K.,  ITts  it  is  said:  "'rhis 
seems  to  show  that  where  the  crime  charged  in  the  indictniciit 
may  include  an  assault,  but  no  assault  is  ex]>ressly  ()r  impliedly 
averred  in  the  indictment,  it  will  depend  upon  the  nature  of  the 
crime,  as  ascertained  bv  the  evi<lence,  whether  it  inehules  an 
assault  or  no,  so  as  to  come  within  7  AVilliam  iV.,  and  N'ic.  ch. 
85,  §  11.     It  seems  that   the  indictment  ^xr  se  would  be  an 


>  not  occa- 
tlie  assault 
k,  1)0  Con- 
to  tlic  case 
icr  tlie  *le- 
:lie  assault 
iidictinent 
ted. 

1  from  the 

'  was,  that 

the  assault 

)roiioun('f(l 

isf^Ml  was  in 

roved,  ami 

oiivicted  of 

not  ynilty, 

from  aiiiJu 

}d  before. 

if  the  ]>arty 

•ron^-lit  in; 

.  and  it  Avas 

the  entwn 

lit,  then  the 

dissenfiiii,' 
1,  we  miu'lit 

in:;'  the  dc- 

uid,  as  wrjl 

and  miirlit 

i7,  imtc  A., 
^aid:  '-This 
indictnit'iit 
•  im]>iiedly 
vtnre  nf  the 
nelndes  an 
iid  \'ic'.  eh. 
Ltuld  be  au 


REGINA  i\  SMITH. 


517 


insufficient  test.  Conip.  Eeghia  v.  D'dworth,  2  M.  &  E.,  531. 
''The  case  in  C.  *fe  K.  is  opposed  to  llegitia  v.  Dilworth,  above 
referred  to,  and  must  be  considered  as  overruled  in  Bird's  Case. 

jMokuison,  J.,  concurred. 

"Wilson,  J.     This  case  may  be  considered  in  two  aspects. 

Firstly,  as  if  the  indictment  for  murder  did  charge  an  assault, 
by  reason  of  the  words,  "  although  an  assault  be  not  charged  in 
terms,"  and  as  if  a  conviction  for  assaiilt  could  be  made  under  it. 

Secondly,  as  if  the  indictment  did  not  charge  or  include  an 
assault  in  any  manner,  by  the  effect  of  the  statute  or  otherwise, 
and  as  if  a  conviction  for  assault  could  not  be  made  under  it. 

In  the  rirst  case,  the  evidence  shows  that  the  assault  did  not 
conduce  to  the  death  of  Currie,  and  the  conviction  is  right. 

In  the  second  case,  whether  the  assault  conduced  to  the  death 
or  not  would  be  of  no  conse([nence,  and  the  conviction  is  also 
right.     That  really  dis])oses  of  the  case. 

In  the  case  of  Jlct/imc  v.  JJinI,  5  Cox  C.  C,  1;  2  Den.  C.  C, 
1)4,  an  assault  was  expressly  charged  in  the  indictment. 

In  lioijina  'O.  O'anes,  22  C.  1*.,  1S5,  I  assume  it  was  not;  but 
that  the  statutory  form  "did  feloniously,  wilfully,  and  of  his 
malice  aforethought,  kill  and  murder,"  was  adopted. 

Under  the  Consol.  Stat.  C,  ch.  00,  sec.  G6,  it  was  decided  that 
the  charge  of  mnrder  in  the  words  of  the  statute  just  given  was 
not  a  crime  charged  which  included  an  assault  against  the  per- 
son, because  murder  was  an  otlense  which  could  be  committed 
otherwise  than  by  an  assault. 

It  is  said  that  the  act  of  1S60,  32,  33,  Yic,  cli.  20,  sec.  51,  D., 
by  the  addition  of  the  words,  "although  an  assault  be  not 
charged  in  terms,"  has  altered  the  meaning  and  operation  of  the 
statutory  form  of  indictment,  and  that  now  an  indictment  for 
niu'der  in  the  nsmd  short  form  must,  in  every  case,  be  read 
and  construed  as  charging  an  assault,  or  as  if  it  did  charge  au 
assault,  and  as  warranting  a  jury  to  convict  of  au  assault  if  the 
evidence  sustain  it,  although  they  acquit  of  the  felony. 

It  is  not  necessary  to  decide  that  point,  for  I  think  it  does  not 
necessarily  arise  here.  I  have  no  objection  to  express  my  opin- 
ion njion  it,  as  it  is  a  nnvtter  of  the  most  serious  importance. 

I  do  not  see  that  any  argument  can  be  derived  from  analogy, 
to  help  us,  from  the  statutes  authorizing  a  conviction  iu  some 


_i'i- 


,i : 


n 


518 


AMERICAN  CRIMINAL  REPORTS. 


M^^B   '                  ^-i'^^^H 

HS^-«S 

NH  . '     ;||iBJI 

^^Ha  '                          j'^l 

I 


cases  for  an  offense  where  n  wholly  different  one  is  charged  in  tlie 
indictment,  and  there  is  an  acquittal  from  that  charge;  as,  for 
an  attempt  to  commit  an  offense  where  the  ]>roof  of  the  c<llmni^;. 
sion  of  the  offense  has  failed,  or  for  endeavoring  to  conceal  the 
hirth  of  a  child,  after  an  ac(juittal  for  the  murder  of  it;  or,  fur 
embezzlement,  on  an  acquittal  of  larceny;  or,  for  larceny,  on  an 
acquittal  of  emhezzlement;  and  in  other  cases. 

There  Avould  he  nothing  more  incongruous,  in  permitting  the 
conviction  for  an  assault,  if  the  evidence  sustained  it,  u])on  an 
indictment  for  murder,  Avhen  the  principal  offense  failed,  than 
there  would  in  the  other  cases  just  mentioned. 

The  question  must  therefore  he.  What  has  the  statute  enacted? 

It  has  declared  that  "where  the  crime  charged  includes  an 
assault  upon  the  person,  although  the  assault  he  not  charged  in 
terms,  the  jury  nuvy  acquit,"  etc, 

In  the  indictment  for  murder,  in  the  statutory  f«»rm,  does  tlic 
crime  charged  (murder)  include  an  assault?  It  does  not.  'i'hat 
is,  "feloniously  and  of  malice  aforethought  hilling  and  nvrder- 
ing  another,"  does  not  include  an  assault. 

So  far,  then,  the  crime  charged  does  not  include  an  assault. 
If  it  do  not,  does  the  enactment  aj-.ply  to  such  a  case?  I  tliiiik 
it  does  not.  The  "crime  charged,"  I  understand  to  mciiii, 
charged  as  a]ipcars  hy  the  indictment,  and  not  charged  as  a]i- 
pears  b}'  the  evidence.  And  if  that  crime  include  an  assault, 
then  the  party  may  be  convicted  of  the  assault,  although  it  lie 
not  charged  in  terms. 

There  are  offenses  which  include  an  assault,  notwithstanding 
the  assault  is  not  charged  in  terms,  as  rape,  robbery,  kidna]>piiig. 
and  stealing  from  the  ])ersoTi.  In  all  these  cases  the  party,  if 
acquitted  of  the  i)rincipal  charge,  could  be  convicted  of  the  minor 
offense  Mith  perfect  propriety,  because  the  minor  is  necessarily 
included  in  the  greater  crime  chari^ed. 

In  such  a  case  there  must  have  been  an  assault,  although  the 
assault  be  not  stated  in  express  terms  to  have  been  committed, 
if  the  principal  offense  were  committed.  And,  if  the  princijial 
offense  were  not  committed,  there  may,  nevertheless,  consistently 
with  the  nature  of  the  crime  charged,  have  been  an  assault  in  fact. 

I  think  that  Mr.  McKe>i.~ie''s  argument  is  entitled  to  great 
weight,  that  if,  under  32-33  Vic,  ch.  20,  sec.  11>,  I).,  on  a  charge 
of  murder  or  manslaughter,  the  jury  were  expressly  pvecluded 


r^cd  in  the 
•i,'e;  as,  fu.r 
le  ('i)iinuis- 
CMiifi'iil  tlie 
it;  or,  fur 
ceiiy,  on  an 

iiiittiiiy;  tlio 
it,  ii]K)n  an 
'ailed,  than 

ite  enacted? 

iiicl  tides  an 

ehai'i^-ed  in 

in,  does  tlic 
iK.t.  That 
nd  nvrder- 

an  assault. 
b?  I  think 
d  to  mean, 
rged  as  aji- 

an  assault, 
loni^di  it  he 

itlistandiiig 
•citliiaj>j)ini.', 
:ie  ]>iirty.  if 
f  tlie  minor 
necessarily 

tliougli  tlie 
eoinmittcd, 
le  ])riiiei])al 
'oiisisteiitly 
anlt  in  fact, 
ed  to  ujreat 
)n  a  charge 
'  pvecludcd 


m 


REGINA  V.  SMITH. 


519 


from  convicting  one  for  unlawfully  cutting,  etc.,  wliy  should  they 
he  rec^uired  to  convict  of  an  assault? 

It  may  be  somewhat  difficult  to  separate  the  assault,  or  the 
cutting,  etc.,  from  tlie  murder  or  manslaughter,  but  I  tliiidc  it 
may  be  done. 

The  assault  can  be  separated  froi.-  the  alleged  rape,  or  I'ob- 
hery,  for  neither  of  these  oftenscs  might  have  been  committed 
by  fhe  i)erson  charged,  in  which  case  the  assault  might  well 
stand,  although  the  principal  oftense  failed. 

It  seems  more  difficult  to  make  the  separation  wlien  life  has 
been  takeji,  and  the  greater  otleiise  has  been  apparently  commit- 
ted. I*ut  life  may  be  taken  and  no  crime  be  committed,  and 
yet  there  may  be  such  a  degree  of  cul])ability  upon  the  person 
charged  with  tlie  offense,  that  although  he  is  not  guilty  of  the 
crime,  he  is  of  an  assault.     I  can  conceive  such  a  case. 

In  my  o])inion,  the  newly  added  words  in  the  s'tatute,  altliougli 
an  assault  be  not  charged  in  terms,  make  no  other  dill'erence  in 
the  operation  and  constrtiction  of  the  clause,  than  to  make  it 
])lainer  or  more  emphatic  than  it  was  before. 

These  words  have  not  enlarged  ai. '  do  not  enlarge  its  opera- 
tion. The  section  still  apjuies  to  cases  where  the  crime  charged 
includes  an  assault,  and  to  such  cases  only,  and  therefore  not  to 
ail  indictment  for  murder,  framed  as  this  one  was  upon  the  stat- 
utory model. 

The  conclusion  1  have  come  to  is,  that  the  conviction  is  right, 
liccause  the  assault  in  question  did  not  conduce  to  the  death  of 
Currie.  And  it  is  of  no  conseipience  in  that  view  how  the  in  • 
dictmeiit  for  murder  was  framed. 

And  I  am  uf  opinion,  if  it  be  material  to  determine,  that  the 
conviction  is  right  because  the  defendant  could  not  upon  the  in- 
dictment for  murder,  framed  as  it  was,  have  been  convicted  of 
an  assault. 

The  court,  therefore,  determines  that  the  defendant  was  rightly 
convicted  of  the  assault,  and  it  is  ordered  that  the  judge  of  the 
county  court,  as  Judge  or  chairman  of  the  general  sessions  of  the 
peace  for  the  county  of  York,  or  the  junior  judge  of  the  county 
court,  and  as  such  junior  jn<lgo,  and  being  a  judge  of  the  general 
sessions  of  the  peace,  shall  give  judgment  on  the  defendant  ujion 
the  said  conviction  at  the  next  general  sessions  of  the  ])eace  for 
the  county  of  York.  Conviction  affirmed. 


1: 


( 


520 


AMERICAN  CRIMINAL  REPORTS. 


i!7\S 


!■»(. 


O'BlUAX  vs.  CoMMONWEALTir. 

(9  13ush,  Ky.,  i5;«.) 

PrACTiCE:    Dischorgcof  Jiiri/  —  Former  jcopardi/. 

The  unnocofKiivy  dischiivj^o  of  one  juror  at,'aiiist  tlio  objection  of  the  res-iioiuloiit, 
on  trial  for  felony,  is  a  (liscliiiryo  of  thu  whole  jury,  luul  a  bar  to  further 
prosecution  of  the  inihctnient. 

Pkvou,  J.     ]Murty  OMJrian  wjis  indicted  hy  a  grand  jury  u£ 
the  county  of  Hickman,  on  tlie  27th  of  March,  1S72,  for  the  niur 
der  of  Tim.  Ilogan. 

He  ap])eared  in  answer  to  tlie  cliar<:;e,  pleaded  not  i^nilty,  and 
also  tiled  a  special  plea,  that  of  former  jeopard}';  the  trial  result- 
int?  in  a  verdict  of  i^uilty,  and  a  judi^nient  thereon  sentenciii::; 
him  to  be  handed.  This  aj^peal  is  from  that  judi^ment.  The  ac- 
cused comjdains  of  many  errors  committed  to  his  prejudice  (lur- 
ing the  proi^ress  of  the  trial  in  the  court  below,  the  most  of  which 
are  deemed  merely  technical,  and  we  will  therefore  proceed  to 
the  consideration  of  the  grave  and  important  (|ue.<tion  involved 
in  the  case.  It  seems  that  the  accused  had  been  indicted  fur  the 
same  oileiisc  by  a  grand  jury  of  the  same  county  in  the  year 
1S<!S,  und  upon  his  ai)pearing  to  answer  the  cluirge  ]>leaded  imt 
guilty,  and  a  jury  was  selected  and  sworn  in  accordance  with  the 
law,  and  the  accused  legally  and  regularly  ])ut  upon  his  trial. 
AVitnesses  were  introduced  on  the  ])!irt  of  the  commonwealtli 
whose  testimony  conduced  to  connect  the  accused  with  the  kill- 
ing of  Ilogan,  and  while  a  witness  was  being  e.\amined  by  tlie 
prosecution  one  of  the  junjrs  (Spilman)  announced  from  the  jury 
hox  that  he  was  a  member  of  the  gran<l  jury  that  liad  found  and 
returned  into  court  the  indictment  upon  which  the  ])rosecuti()n 
was  based;  and  tliereu]ion  the  court,  of  its  own  motion  ami 
against  the  objections  of  the  accused  and  his  counsel,  discharged 
this  juror,  and  had  another  summoned  in  his  stead.  The  trial 
then  progressed,  iHisulting  in  a  verdict  of  guilty.  The  case  was 
brought  to  this  court  and  reversed,  and  upon*  its  return  to  the 
lower  court,  the  indictment  having  become  mutilated,  a  new  in- 
dictment was  found,  the  same  under  which  this  conviction  was 
luul,  and  to  which  the  special  plea  was  filed,  containing  ia  sub- 
stance, the  facts  above  recited.  These  facts  arc  all  made  to  ai^ijcar 
in  the  present  record,  the  bill  of  evidence  on  the  former  trial 


w^ 


i  'I 


O'BRIAN  t'.  COMMONWEALTH. 


521 


Of 


0  rcsponilent, 
lu-  to  further 


11(1  jury  of 
V  the  imir- 

,niilty,  and 
:rial  rosiilt- 
seiiteiiciiiir 

.     Tl.cac- 

udice  <hir. 

<t  ()[■  wliicli 

]tni('eeMl  to 

n  involved 

ted  for  the 

111  tlie  your 

>leiidcd  not 

ce  with  tliu 

II  his  trial, 
inoinvi'alfh 
th  the  kill. 
nod  hy  tlie 

III  the  jury 
found  and 
•rosecutioii 
lotion  and 
diseliari^'od 

The  trial 
le  c'iiso  was 
urn  to  the 
!i  new  in- 
iction  was 
iii^  in  snl)- 
(J  to  ai^iieur 
jrmer  trial 


foriuiiig  a  part  of  tlie  hill  of  evidence  in  this  case.  There  is  no 
controversy,  however,  hetwoen  the  attorney  for  the  state  and  the 
counsel  for  the  accused  as  to  the  existence  of  the  facts  constitut- 
ing the  defense  relied  on. 

It  is  now  insisted  that  the  accused  had  the  right  to  demand 
that  the  trial  under  the  indictment  found  in  18(18  should  have 
progressed,  and  the  court  had  no  power,  without  his  consent  and 
against  his  objection,  at  its  mere  v/ill,  to  discharge  the  jury, 
thereby  preventing  them  from  making  a  deliverance  between 
him  and  the  commonwealth;  and  he  is  for  that  reason  entitled 
to  an  acquittal. 

An  instruction  containing  in  substance  this  view  of  the  case 
was  (itl'ered  i)y  counsel  for  the  defense  and  refused  by  the  court, 
to  which  exce])tioiis  were  projierly  taken,  and  the  question  now 
presented  is,  iShould  this  instruction  have  l)ee  n  given  to  the  jury? 
There  is  much  diversity  of  opinion  among  judges  as  to  the  ])ower 
of  a  court  at  its  discretion  to  discharge  a  jury,  during  the  pro- 
gress of  the  trial,  in  a  criminal  case  where  the  punishment  is 
death.  The  ancient  common  law  doctrine  on  this  subject  was  to 
refuse  to  discharge  the  jury  in  such  a  case  even  with  the  consent 
of  the  prisoner;  but  this  doctrine  was  discarded  by  many  of  the 
earlier  English  judges  as  unreasonable,  and  tlie  jury  permitted  to 
he  discharged  in  cases  of  a])solute  necessity. 

Lord  Hai.e  said  that  if  the  prisoner  after  his  plea  and  before 
trial  becomes  insane,  he  shall  not  be  tried;  and  if  after  trial  he 
becomes  insane,  he  shall  not  receive  judgment;  and  in  a  case 
where  a  juror  fell  down  with  a  fit,  it  v^-as  held  that  the  jury  was 
properly  discharged.     1  Hale,  31;  '2  id.,  'Jl)5. 

The  discretionary  power  of  couns  over  juries  in  capital  cases 
has  been  greatly  enlarged  in  many  of  the  sttitesof  the  Union,  and 
in  some  it  is  held  that  while  judges  must  be  extremely  cautious 
in  interfering  with  the  chances  of  life  in  favor  of  the  prisoner, 
still  in  the  exercise  of  their  diecretion  they  have  the  right  to 
discharge  the  jury,  and  the  only  security  the  prisoner  has  is  in 
the  conscientious  exercise  of  this  power  and  the  responsibility  of 
the  jiKlges  under  their  oaths.  That  courts  have  the  power  to 
discharge  juries  in  criminal  causes  where  the  accused  is  even 
charged  with  a  capital  otlense,  and  that  without  the  prisoner's 
consent,  is  now  too  well  settled  to  be  doubted;  but  whether  the 
exercise  of  this  power  is  to  be  determined  at  the  mere  will  of  the 


623 


AMERICAN  CRIMINAL  REPORTS. 


11' 


P- 


i.  ! 


judge,  or  only  in  cases  of  absolute  and  extreme  necessity,  is  a 
qnestion  in  regard  to  which  we  lind  many  conflicting  authorities. 

Section  'ill  of  the  criminal  code  provides  that  a  challenge  for 
implied  bias  may  he  taken  where  the  juror  was  a  member  of  tlie 
grand  jury  that  found  the  indictment,  but  in  no  wise  disipialifies 
him,  unless  challenged  by  the  parties  to  the  indictment.  Wliuii 
Uie  fact  is  disclosed  showing  this  inqdied  bias,  if  the  accused  fails 
to  object  or  ask  a  discharge  of  the  jury,  it  is  a  waiver  of  his 
right,  and,  as  decided  by  this  court  in  the  case  of  Flt-qxiti'hi-  c. 
I^orri^,  he  cannot  afterward,  for  this  cause,  avoid  the  verdict  or 
obtain  a  new  trial. 

The  accused,  however,  in  this  case,  after  having  once  accepted 
the  juror,  was  still  willing  to  be  tried  by  him,  and  ])rotestod 
against  the  action  on  the  part  of  the  court  in  discharging  hiin, 
by  excepting  to  the  ruling;  and  the  court,  disregarding  his  nl). 
jections,  retpiired  the  trial  to  progress  after  the  substitution  uf 
another  juror. 

Section  248  of  the  criminal  code  ]>rovide8  "that  if,  after  re- 
tirement, one  of  the  jurors  becomes  so  sick  as  to  prevent  a  con- 
tinuance of  his  duty,  or  other  accident  or  cause  occur  ])reventiiig 
them  being  kept  together,  or  if,  after  being  ke}>t  together  sueli 
a  length  of  time  as  the  court  deems  projier,  they  do  not  agree 
on  a  verdict,  and  it  satisfactorily  aj»pears  that  there  is  no  proha- 
bility  they  can  agree,  the  court  nuiy  discharge  the  jury." 

Section  24I>  ])rovides  "that  in  all  cases  where  a  jury  is  dis- 
charged, either  in  the  })rogress  of  the  trial  or  after  the  cause  is 
submitted  to  them,  the  same  may  be  again  tried,  at  the  same  or 
another  term  of  the  court." 

It  could  not  have  been  intended  by  the  section  .siiprd  (ilS),  that 
the  power  of  the  court  to  discharge  a  jury,  in  cases  of  necessity, 
is  restricted  to  the  causes  enumenited  in  that  section;  if  so,  all 
other  causes  arising  during  the  ])rogress  of  the  trial,  showiiiu' a 
clear  and  manifest  necessity  for  the  discharge  of  the  jury,  must 
be  disregarded.  This  section  of  the  code,  in  (»ur  opinion,  wiis 
not  intended  to  define  all  the  causes  upon  the  happening  of 
which  this  power  could  be  exercised,  but  was  only  intended  as 
an  adoption  of  the  legal  rule  that  a  case  of  actual  necessity  must 
exist  before  a  jury  can  be  discharged. 

Section  2-ti)  was  interuled  to  apply  to  such  cases  as  are  men- 
tioned in  section  24S,  and  has  direct  reference  to  the  latter  sec- 


co,<.sity,  18  IV 
aiitlioritiL's. 
iilloiiife  for 
nl)t;r  of  tlio 
<lis(jiiiilitie.s 
lit.  Whuu 
ccuscd  fails 
iver  of  his 
'rqxttri-h-  e. 
Li  verdict  or 

c!o  iiceepted 
il  i)rotfstoil 
iri,nii;f  him, 
iiii:;  liiri  oh- 
stitution  of 

if,  after  ro- 
iveiit  il  cun- 

jtreveiitiiig 
i,'ether  pir-Ii 
I)  not  ai,n'oe 
s  no  pruha.- 

jury  i.s  dis- 
tlie  cau.'^e  U 
the  .same  ur 

!  (24S),  tliut 
f  neecs.sity, 
\\\  if  80,  all 
,  showing'  a 
jury,  must 
|)inion,  was 
])])enini,^  uf 
intended  as 
ussity  must 

LS  are  mcu- 
!  latter  sec- 


O'BRIAN  V.  COMMONWEALTH. 


523 


tion;  but  giving  to  section  249  of  tlie  code  its  most  comprehen- 
sive meaning,  and  placing  this  right  to  discharge  a  jury  by  its 
jjrovisions  at  tlie  sole  discretion  of  the  judge,  it  is  still  argued 
that  its  exercise  witliout  any  legal  necessity  is  an  infringement 
upon  the  constitutional  rights  of  the  citizen. 

The  accused  had  the  right,  under  the  constitutl(»n  and  laws  of 
the  state,  to  a  fair  and  impartial  trial  of  his  case  by  a  jury  of 
twelve  men,  selected  and  swijrn  according  to  law,  and  when  thus 
selected  ami  chosen  by  him,  it  was  their  province  to  render  and 
his  right  to  demand  a  verdict  as  to  his  guilt  or  innocence  of  the 
ctlense  charged. 

The  withdrawal  of  the  juror  Spilman,  against  his  objection, 
terminated  the  legal  existence  of  the  jury  sworn  to  try  the  issue 
between  him  and  the  commonwealth,  a  jury  to  whom  he  had 
I'oen  delivered  in  charge,  and  at  whose  hands  he  had  the  legal 
right  to  expect  a  safe  deliverance.  There  was  certainly  no  legal 
reason  or  necessity  for  discharging  Spilman  from  the  jury,  lie 
was  a  competent  juror,  although  a  member  of  the  grand  jury 
tliat  returned  the  indictment  into  court,  lie  had  been  accepted 
1)V  l>oth  the  commonwealth  and  the  accused,  and  nothinir  but  his 
death,  sickness,  or  some  accident  preventing  his  continuance  on 
duty,  authorized  the  court,  without  the  consent  of  the  accused, 
to  say  that  he  should  no  longer  constitute  one  of  the  panel. 
AVh;it  the  verdict  of  the  jury  might  have  been  with  Spilman  up- 
on it  is  left  altogether  to  conjecture;  yet  the  accused  was  entitled 
■to  a  verdict  from  him  in  conjunction  with  his  fellow-jurors,  and 
the  court  had  no  legal  power  to  deprive  him  of  this  right.  Sec- 
tion IJ-  of  article  13, state  constitution,  provides  "that  no  person 
shad,  for  the  same  otiense,  be  twice  put  in  jeopardy  of  his  life  or 
limb." 

A  similar  provision  is  also  made  part  of  the  federal  constitu- 
tion, and  that  of  almost  every  state  in  the  Union.  The  right  of 
trial  by  jury  is  of  but  little  value  to  the  citizen  in  a  criminal 
ju'osecution  against  him,  if  this  provision  of  the  constitution  can 
Ite  violated  and  the  accused  left  without  remedy.  If  the  judge 
can  arbitrarily  discharge  and  impanel  juries  until  one  is  obtained 
that  will  render  such  a  verdict  as  the  state  demands,  or  the  at- 
torne\'  for  the  prosecution  desires,  and  the  only  protection  against 
such  oppression  is  that  a  new  trial  may  be  ordered  in  the  court 
trying  him,  or  hy  the  court  of  last  resort,  then  of  what  value  is 


534 


AMERICAN  CRIMINAL  REPORTS. 


t 


iv"A 


tins  boasted  right?  It  will  not  do  to  say  to  the  nceused  that  hisj 
only  prutection  is  in  the  sound  discretion  of  the  jiid<,'e,  or  in  tlie 
responsibilities  assumed  by  him  in  takinj;  the  oath  of  olHce.  As 
remarked  by  Justice  Tii.ciiiMAN  in  the  ease  of  the  Tlie  Cotionon- 
ici'tilth  V.  Cook,  0  Ser<jj.  it  JJawlo,  577:  "  In  the  state  of  jjurity 
and  independence  in  which  I  verily  believe  the  judiciary  of  the 
several  states,  as  well  as  of  the  United  States,  at  ])resent  stands, 
there  niii^ht  be  no  dauirer  of  o])pression  from  the  enjoyment  of  a 
very  lari^e  discretionary  power  as  to  the  djscliarife  of  juries;  l)ut 
other  times  may  come,  in  which  judges  may  al)use  tliis  discro- 
tion,"  etc.  (tibson,  Justice,  in  the  case  of  T/ie  Coiiiinoitu\(tlth 
V.  Clue,  o  Ilawle,  4S8,  said,  "AVhy  it  should  be  thought  that  tlio 
citizen  has  no  other  assurance  than  the  arbitrary  discretion  uf 
the  nuigistrate  for  the  enforcement  of  the  constitutional  ]>rin('i])lo 
which  projects  him  from  being  twice  ])ut  in  jeopardy  of  life  uv 
member  for  the  same  (tllense,  I  am  at  a  loss  to  imagine.  If  dis- 
cretion is  to  be  called  in,  there  can  be  no  remedy  for  the  abuse 
of  it  but  in  interposition  of  the  power  to  pardon,  which  is  obnox- 
ious to  the  very  same  objection.  Surely  every  right  secured  by 
the  constitution  is  guarded  by  sanctions  more  imperative.  A 
right  which  depends  on  the  will  of  tlie  magistrate  is  essentially 
no  right  at  all,  and  fur  this  reason  the  ct)mmon  law  abhors  the 
exercise  of  a  discretion  in  matters  that  maybe  subjected  to  tixed 
and  definite  rides." 

While  the  integrity  of  the  judiciary  of  this  country  has  ahv.'iys 
been  maintained,  still  wo  are  satisfied  the  surest  i)rotection  to 
the  citi;2en  when  npon  trial  for  a  ca])ital  odeuse,  u]»on  such  a 
state  of  facts  as  appears  in  this  case,  consists  in  the  constitutional 
guaranty  that  he  shall  not  be  twice  ])ut  in  jei>pardy  of  life  ur 
limb  for  the  same  offense.  If  the  judge  has  the  legal  right  to 
discharge  the  jury  in  a  case  like  this,  he  may  also  discharge  it 
on  account  of  the  absence  of  a  witness  for  the  ])rosecution,  or  in 
every  instance,  and  as  often  as  the  testimony  is  deemed  insuf* 
ticient  upon  which  to  base  a  conviction,  and  subject  the  accused 
to  the  same  niode  of  trial  as  ])ertains  to  every  civil  action. 

It  is,  however,  urged  by  the  attorney  for  the  state  that  the  ac- 
cused was  not  in  jeopardy  when  the  jury  was  discharged;  and  in 
order  to  have  placed  him  in  jeopardy  so  that  he  might  be  heard 
upon  his  special  jdea,  there  must  be  shown  a  verdict  or  judgment 
of  acquittal  upon  a  previous  indictment  for  the  same  ofl'ense.    If 


ed  thiit  liiij 
e,  oi-  ill  the 
olHco.  As 
'  Com  III  on- 
e  <»t'  |turlty 
iiiry  of  tho 

iUHt  HtiUuls, 

.yiiKMit  (if  a 
juries;  l>iit 
til  is  di.st'ro- 
iiii)ini\<(lth, 
:lit  tliiit  tlio 
is^crelidii  uf 
il  ]»riiuM])lo 
)'  (ii  lit'c!  ur 
»e.  lf(li.s. 
'  tlio  ilbutSO 
li  is  (ihiiDX- 
Kt'ciiroil  l»y 
initivo.  A 
e.sseiitiiilly 
abhors  the 
ted  to  lixod 

liiis  iil\vaj3 
I'oti't'tioii  to 
I»<m  siifli  il 
istitntiouul 
Y  of  life  or 
4'al  rii^-lit  to 
liseliar<:;o  it 
itioii,  or  in 
mod  iusuf- 
lie  iiccused 
tioii. 

liJit  tho  ac- 
?ed;  and  in 
it  he  heard 
■judgment 
>ftense.    If 


O'BRTAN  r.  COMMONWEALTH. 


525 


the  record  imipt  show  a  state  of  fact  tliat  would  authorize  the 
plea  of  Hiifiu'j'ot's  (^np/if  or  coiivJrt^  tlien  it  follows  that  the  same 
character  of  evidence  is  re(]uired  to  bar  a  prosecution  upon  an 
indictnient  for  murder  that  must  be  shown  in  a  common  law 
action  determiniiii;  the  ri<,'ht  of  property,  and  the  juduje  in  either 
case  is  empowered  to  discharge  the  jury  wlieuever  in  his  opinion 
the  ends  of  justice  re(|uire  it.  8ueh  v  'rtiunly  can  not  be  the 
incaning  attached  to  this  jirovision  in  the  bill  of  rights.  Tho 
word  jeopardy  means  exposure  to  death,  loss,  hazard,  danger, 
peril,  etc.,  and  where  one  is  put  upon  his  trial  on  a  charge  of 
murder,  before  a  jury  sworn  to  decide  the  issue  between  the 
commonwealth  and  himself,  the  accused  is  then  exposed  to  the 
hazard  and  peril  of  his  life.  In  this  case  the  accused  was  will- 
ing to  risk  the  chances  with  the  jury  he  had  selected,  but  the 
court  below  comjH'lled  him  to  assume  the  additional  ]>cril  of  being 
tried  by  another  ami  ditlerent  jury;  and  as  said  by  Chitty  in  his 
treatise  on  Criminal  Law,  "  that  to  discharge  a  jury  in  a  criminal 
case  has  one  great  inconvenience,  that  of  bringing  the  ])risoner's 
life  twice  in  jeopardy;  and  in  the  case  of  the  Coramonvealth  v. 
Conk,  (5  Serg.  ».*c  Jvawle.  ('.77,  Justice  DrxcAx  says:  "That  when 
the  jury  are  charged  with  a  prisoner,  where  the  offense  is  punisha- 
ble by  death,  and  the  indictment  isnot  defective,  lie  is  in  jeopardy 
of  his  life,  and  the  prisoner  is  entitled  to  say  to  the  court,  'I 
have  put  myself  on  trial  for  life  or  death  on  these  twelve  men; 
I  will  not  agree  to  be  again  ])nt  in  jeopardy." 

In  the  case  of  Jhihfn'iis  v.  The  State,  U  Ohio  St..  400,  where  the 
accused  claimed  an  ac(|uittal  by  reason  of  the  discharge  of  the  jury 
upon  their  failure  to  agree.  Attorney  General  Critchtield  for  the 
state  said:  "  It  is  well  settled  that  the  ])laintiff  in  error  was  put 
in  jeopardy  by  the  first  trial,  if  the  court  improperly  discharged 
the  iury.  A  verdict  is  not  necessary  either  way  to  put  a  defend- 
ant h\  jeo)>ardy,  and  being  once  jeopardized  and  not  convicted,  it 
is  an  ac(juittal;  but  it  is  also  well  settled  that  the  court  can  ex- 
ercise a  discretion,  and  discharge  a  jui-y  in  case  of  .absolute  neces- 
eitv,  and  where  there  is  no  reasonable  hope  of  the  jury  agreeing 
on  a  verdict."  And  in  the  same  case  the  learned  jmlge,  in  de- 
livering the  opinion  of  the  court,  says,  "It  is  perfectly  well  set- 
tled that  if  the  state  intervenes  without  a  case  of  necessity,  and 
prevents  a  verdict,  the  accused  can  not  be  subjected  to  a  further 
trial  consistently  with  the  constitutional  guaranty  that  he  shall 


'Am 

^:#ii:t 

i  'i\ 


.    il 

.£*:■'  lia 


52<] 


AMKRICAN  CRIMINAL  UKPORTS. 


fil 


'm 


not  be  twice  put  in  jeopardy  for  the  snine  nffeusc;"  iukI  tlio  fol. 
lowing  oiisert  are  cited:  "  Ilnrht/H  tV/.v>',  (5  Ohio,  4(Ht;  Mmnit  r, 
T/ieSf(d(\  l-t  Id.,  Hl»4;  Poityc  ?'.  .S'A^A,  JU  Milo  St., '.'-'!>;  JA7r,,\ 
1  IJtiil.,  Cuu\  People  v.  (/ooifinin,  IS  , I  i»]iiif<.,  *J(tr»;  /*,i>j>/e  r.  Ii,ii'. 
retf,  ii  (Raines,  ,"04.  "A  person  \a  in  le<;al  jeopardy  wlien  lio  U 
put  upon  trial  before  a  court  «»f  competent  jurisdiction  upon  in- 
dictment or  infornuition  wliidi  \h  .sutKcient  in  form  and  siil». 
stance  to  sustain  a  conviction,  and  a  jury  has  been  char:,'ed  with 
Ills  dellveraTice;  and  a  jury  is  said  to  be  tlius  diari^eij  when  tlioy 
liave  been  impaneled  atid  sworn. 

The  defendant  then  becomes  entitled  to  a  verdict  which  shall 
constitute  a  bar  to  a  new  prosecution,  and  he  can  not  be  deprived 
of  this  bar  by  the  enterin<i;  of  a  iiol/e  jifofiefjii!  a;,niinst  his  will, 
or  by  a  discharg.;  of  the  jury  and  continuance  (»f  the  case."  Cool- 
ey's  Cons.  Lir-i.,  lM  ed.,  32(). 

In  the  ca.-e  of  the  Sfitfe  v.  J/r/vee,  1  JJail.  (S.  C),  O.")?,  0'Xi;Ar.r,, 
J.,  delivering  the  opinion,  nndvcs  this  inquiry:  '•  We  ask  what  is 
incfint  bv  jeopardy  of  Ids  life?  It  is  where  one  is  put  upon  his 
trial  upon  a  valid  indictment  for  aca]tital  ott'ense.  It  may  result 
in  his  coiKh'mnation,  and  hence  he  is  in  jeopardy. 

After  reviewing  nniny  authorities,  the  learned  judge  proceeds: 
"  We  are  enabled  to  say  that  a  jury,  after  they  are  charged,  can 
bo  discharged,  and  the  ])risoner  tried  a  second  time  for  the  fob 
lowing  causes  only:  1.  The  ciuisent  of  the  prisoner;  *J.  Illness  df 
one  of  the  jury,  prisoner,  or  the  co'irt;  3.  Absence  of  <i|'  ■  ..I"  the 
jurymen;  4.  The  impossibility  of  agreeing  oit  u  a «  liet."  \\  iiilc 
it  must  be  maintained  that  some  cause  si  k  iNenc  tli.t*^  of 

necessity  compels  the   discharge  of  the  ,  .>till   we  thi       it 

quite  dilhcidt  to  designate  all  the  causes  tii,,  woiil''  legally  jus- 
tify sucli  action  on  the  part  of  the  court,  find  can  mly  reatlinii 
the  principle  embodied  in  all  the  cases  referreil  to,  and  which,  in 
our  opinion,  is  also  the  doctrine  of  the  common  law,  that  every 
interference  on  the  part  of  the  state,  after  the  jury  has  charge  of 
the  prisoner,  by  which  the  accused  is  prevented  from  having  a 
verdict  declaring  his  guilt  or  innocence,  uidess  upon  facts  clearly 
establishing  a  case  of  necessity,  or  showing  the  i)ris(»ner's  con- 
sent, must  operate  as  an  acquittal,  and  this  is  the  only  mode  of 
preserving  and  maintaining  the  constitutiomd  provision  on  the 
subject. 

In  3  Wliart.  Am.  Crim.  Law,  §  3128,  it  is  said,  "  an  arbitrary 


O'BRIAN  V.  COMMONWHALTII. 


r. 


ivikI  Hio  fol. 
wlion  lie  U 

•II   ll|»n|i  ill- 

II  iuid  siih. 

laru^od  witli 

wlit'ii  tlu'y 

wliicli  slmll 

»o  (Ic'privi'il 

Ht  liis  M-ill, 

se."      C.jnl. 

r,  o'XiiAi.i., 

ask  what  is 

lit  uj)()ii  ]iis 

may  ro.<ii!t 

:e  jn'ocet'cls: 

Iiargod,  can 

I'or  the  I'ol- 

I.  llhuss  .,f 

r  ..I    ,,r  the 

;-t."  U  jiilo 
rue  tli.v*  nf 
ive  thi  .  it 
lt'<,'a!i_v  jus- 
ily  rcatliriii 
il  wliicli,  ill 
that  every 
s  diarize  of 
11  liaviijif  il 
K'ts  clearly 
oiier'.s  eoii- 
ly  mude  of 
iion  on  the 

I  arbitrary 


discharge  of  the  jury  without  siitKeient  reason  relieves  the  defend- 
ant from  a  seeond  trial."  And  in  the  ease  uf  Stiumtft  v.  The 
iSf'if<\  l''*  Ohio  St.,  15.5,  a  case  similar  in  many  resjiects  to  tlio 
one  before  us,  the  juror  was  a  member  of  the  grand  jury  that 
found  the  indictment,  and  after  the  trial  had  begun,  so  informed 
the  court,  when  the  judge  iiujuired  of  the  ])rirtoner  and  his  attor- 
ney if  they  oltjected  to  ])roceeding  with  the  jury;  the  resj)on80 
was,  they  did,  and  thereujton  the  court  discharged  the  jury  and 
had  another  impaneled.  The  prisoner  claimed  that  hiiving  been 
once  in  jeopardy,  he  was  entitled  to  an  acijuittal,  and  upon  an 
appeal,  when  this  question  was  made,  Scorr,  J.,  said:  "At  that 
stage  of  the  proceeding  (alluding  to  the  announcement  made  by 
the  juror)  the  accused  had  the  right  to  demand  such  a  disposition 
of  the  case  either  by  verdict  or  otherwise  as  would  bar  another 
])ni?ccuti(>n  for  the  same  crime;  of  this  he  could  not  be  dej>rived 
at  the  will  of  the  court  by  the  entry  of  a  iiollo  prosequi  or  tlio 
discharge  of  the  jury  without  an  absolute  necessity  therefor. 
Such  action  taken  without  his  consent  would  o])erate  as  an  ac- 
quittal, and  be  a  bar  to  any  further  or  8ubse(|uent  prosecution 
for  the  same  ofl'ense.  To  hold  otherwise  would  be  to  contravene 
the  constitutional  guaranty  against  being  twice  put  in  jeopardy 
for  the  same  oH'ense." 

An  ac<[uittal,  however,  was  denied  for  the  reason  that  the 
accused  had  objected  to  being  tried  by  the  juror.  If  in  the  pres- 
ent case  the  attorney  for  the  state,  after  the  introduction  of  the 
testimony  for  the  prosecution,  had  by  leave  of  the  court  entered 
&  nolle  jifoKiqii/,  is  there  any  doubt  but  that  it  would  have  re- 
sulted in  the  jirisoner's  ac(piittalJ  We  think  no  jurist  will 
assume  that  he  could  be  again  be  tried  for  that  oftense,  and  if  so, 
must  not  the  discharge  of  the  jury  by  the  court  under  like  cir- 
cumstances have  the  same  effect?  It  certainly  would,  and  in 
either  instance  can  be  relied  on  as  a  comjdcte  bar  to  any  subse- 
quent prosecution  for  the  same  alleged  crime. 

It  will  be  found  upon  a  careful  examination  of  all  the  authori- 
ties in  conflict  with  the  views  here  presented  that  the  oi)inions 
have  been  delivered  in  almost  every  instance  in  cases  of  misde- 
meanors, where  it  is  admitted  the  court,  as  in  civil  cases,  can  ex- 
ercise a  sound  discretion  in  the  discharge  of  the  jury,  but  in  cases 
involving  the  libert}'  of  the  accused,  the  judgments  affirming  the 
action  of  the  lower  court  in  discharging  juries  have  been  reuderod 


F : 


•  ! 


52S 


AMERICA  ;n  criminal  REPORTS. 


H 


isr 


in  cases  showing  an  absolute  necessity  on  the  part  of  the  court  in 
ordering  a  new  panel.  There  is  no  case  to  be  found  wbere  tlie 
citizen  has  been  placed  upon  trial  for  murder,  and  the  jury  di^. 
charged  without  his  consent  and  without  legal  cause,  where  a 
doctrine  contrary  to  the  views  herein  exp''ossed  has  been  an- 
nounced. 

The  opinion  of  Justice  Washington,  cited  in  1  "Whart.  Am. 
Crlin.  Law,  ]).  5S0,  altliough  often  quoted  as  sustaining  the  doc- 
trine that  the  provision  of  the  constitution  in  (piestlun  does  not 
apply  to  a  jeopardy  short  of  conviction,  .and  that  there  is  no  dif- 
ference between  misdemeanors  and  capital  cases  in  respect  to  the 
discretion  of  the  court  in  discharging  jurie?,  contains  tliis  lan- 
guage: "  I>y  re])robating  this  plea  (former  jeopardy),  we  do  not 
deny  to  a  prisoner  the  opportunity  to  avail  himself  of  the  im- 
proper discharge  of  tlie  jury  as  ecjuivalent  to  an  accpiittal." 

This  court,  in  the  case  of  the  Coiiii/ionir/yt/tk  v.  Olds,  who  was 
proceeded  against  in  tlie  county  court  fur  failing  to  list  a  billiard 
table  for  taxation,  in  an  opinion  delivered  in  the  ywir  1824,  ad- 
judged that  nothing  short  of  a  tinal  verdict  or  judgment  could 
relieve  a  party  from  a  secciul  trial,  and  apply  the  arguinont  as 
well  to  criminal  ]»roceedings  as  to  misdoni ?aiiors;  and  when  the 
present  case  was  here  by  a])peal  in  ISOO,  the  court  adojited  the 
former  case  of  Olds  as  a  precedent,  a<lhering  to  the  jiriiu-iiilo 
therein  stated.  It  is  now  insisted  that  the  law  of  this  case  is 
settled  by  that  opinion. 

We  are  satistled  that  nothing  gives  more  strength  to  and  con- 
fidence in  the  judiciary  of  the  stale  than  an  adherence  to  well 
established  ]>rlnclples  allecting  either  the  rights  of  jierson  oi- 
property,  and  in  a  civil  case  we ''Vould  not  hesitate  to  de(Mde  that 
the  former  adjudication  settled  forever  the  rights  of  the  parties. 

In  the  present  case,  although  the  <]uestion  seenis  to  have  been 
well  considered  in  rendering  the  former  opinion,  still  the  court 
was  only  urged  to  its  conslderati(»n  by  the  ])erslstency  of  counsul 
wdien  there  had  been  no  plea  presenting  the  (piestion  to  the  court 
below,  or  even  a  motion  made  to  discharge  the  prisoner.  The 
accused  had  no  opportunity  to  j)resent  the  special  plea  until  the 
return  of  the  cause  and  the  finding  of  the  present  indictment; 
and  with  such  a  j)lea,  sustained  by  the  facts  as  they  a|)peared  on 
the  former  a})peal,  ^^e  are  satistled  this  court  would  n(;t  have 
aflirmed  the  judgment  had  there  been  no  other  cause  of  reversal. 


STATE  V.  WILSON. 


529 


lIio  court  in 

I  wli.ere  the 
e  jury  dU- 
se,  wilt-re  a 
s  been  an- 

iVliart.  Am. 
n<^  the  doc- 
t)ii  (loos  not 
[•e  is  no  dif- 
spcc't  to  tlie 
n.s  this  lan- 
u  we  do  not 
of  tlie  iiii- 
ittal." 
/.y,  who  M-as 
st  a  hilliard 
ir  1SJ4,  ud- 
nient  could 
ri:;uinont  as 
1(1  whi'u  the 
adojtttMl  the 
10  ju'iiu'iple 
this  oa.-o  is 

to  and  oon- 
■ncc  to  well 
person  nr 
decide  that 
the  ])artios, 
»  have  been 

II  the  court 
f  of  Counsel 
to  the  court 
soner.  The 
ea  until  the 
Indictment; 
ippeared  on 
d  not  have 
of  reversal. 


Conceding,  however,  that  this  (juestion  was  properly  before  the 
court  upon  the  former  aj>peal,  still  no  former  adjudication  gives 
to  the  state  the  right  to  take  the  life  of  the  accused  when  he  is 
entitled  to  an  actj^uittal.  Tlie  commonwealth  is  not  in  pursuit  of 
victims,  but  desires  to  inllict  punishment  oidy  in  a  legal  and  con- 
stitutional way  U})on  the  guilty. 

The  judgment  of  the  court  below  is  reversed;  and  as  the  verity 
of  the  record  of  the  fc»rmer  trial  is  admitted,  by  the  state,  the 
court  below  is  directed  to  discharge  jiurty  O'Brian  from  custody. 

Lindsay,  J.,  not  sitting. 


State  vs.  AVilson. 

(50  Iiul.,  487.) 

Practice:    Dlschnnje  of  Jitn/  in  rcs/ioiideiit's  absence. 

On  a  trial  for  munlor,  tlio  jury,  aftor  beiiijf  out  thirty-two  honr.^,  woro  dis- 
cliarj^L'd  //(  ///'.'  nhscncc  of  the  irspomhut,  on  account  of  thoir  inability  to 
agree.  This,  being  specially  pleadeil  on  a  second  trial  of  tlie  same  indict- 
ment, was  held  a  good  jilea  and  a  bar  to  farther  iirosecution, 

I'lDOf-F,  C.  J.  Tlo!)ert  Wilson,  with  John  Cope,  was  indicted 
for  murder.  "Wilson  pleaded  not  guilty  to  the  indictment,  and 
v.as  put  upon  trial  by  jury.  The  trial  progressed,  the  evidence 
was  intnuluced,  the  argument  of  ccunsel  heard,  and  instructions 
of  the  court  given.  The  jury  retired  to  consider  of  their  ver- 
dict, and,  after  deliberating  thirty-two  hours,  were  returned  into 
court.  They  were  interrogated  by  the  court  as  to  what  the 
probability  was  of  their  agreeing  upon  a  verdict,  and  they  an- 
swered "there  was  none."  Thereupon  the  coui-t  discharged  the 
jury  from  the  further  consideration  of  the  crtuse.  The  appellee 
afterwards  specially  ])leaded  the  discharge  -  i  the  jury  in  bar  of 
the  further  prosecution  of  the  case. 

The  pica  set  out  the  proceedings  formally,  and  avers  that  sucli 
proceedings  were  then  and  there  had  in  said  case,  tlu.i  on  the 
'Jdtli  day  of  November,  18T4,  the  said  jury,  having  been  duly 
charged  by  the  said  court,  at  the  hour  of  eleven  o'clock  and 
twenty-live  minutes,  A.  M.,  of  said  last  mentioned  date,  they  re- 
tired, under  the  charge  of  a  sworn  bailitf  of  said  court,  to  con- 
VoL.  I.-34 


If 


530 


AMERICAN  CRIMINAL  REPORTS. 


li  !  ; 


tj  Ur 


sider  of  tlieir  verdict,  and  that  said  jury  continued  their  deliljer- 
atious  till  the  hour  of  fifteen  minutes  before  eight  o'clock,  P.  M., 
of  the  21st  day  of  November,  1874,  and  having  failed  to  agree 
upon  their  verdict,  they,  the  said  jury,  were  thereupon  brought 
into  court  by  their  said  bailiff  by  the  order  of  said  court,  in  the 
absence  of  this  defendant,  the  said  llobert  Wilson,  aiid  while  he 
was  then  confined  and  restrained  in  the  jail  of  said  county,  and 
without  his  knowledge  or  consent, directly  or  indirectly;  and  the 
paid  court  proceeded  then  and  there  to  interrogate  said  jury  upon 
the  probability  of  their  agreeing  upon  a  verdict  in  said  caune, 
and  the  said  jury  then  and  there  informing  the  said  court  that 
there  was  no  probability  of  their  agreeing  upon  a  verdict  in  said 
cause,  the  said  court  thereujion  discharged  the  said  jury  froui  a 
further  consideration  of  said  cause,  this  defendant,  the  said  Iloh- 
ert  Wilson,  not  being  then  and  there  present,  l)ut  being  then 
confined  and  restrained  in  the  jail  of  said  county  by  the  sheriti' 
thereof,  and  without  his  knowledge  or  consent  as  afore^aiil."' 

The  state  demurred  to  this  plea  for  want  of  sufficiunt  facts. 
Tlie  demurrer  was  overruled,  and  proper  exceptions  t;ikon. 

"We  are  of  opinion  that  the  discharge  of  the  jury,  under  the 
circun..-tances  averred  in  the  plea,  would  have  been  proper,  if  tlie 
appellee  had  been  present  in  court,  even  though  ho  had  objected 
to  the  discharge,  unless  he  had  showix  some  good  ground  whv 
the  jury  should  not  have  been  discharged;  and  in  .<uoli  case  tlio 
discharge  could  not  have  been  ])leaded  in  bar  of  the  furtlar  prug. 
ecution  of  the  case.  McCorkle  v.  T/ie  State,  l-i:  Iiid..  ;>!•:  The 
State  V.  Walhr,  20  id.,  340;  Shaffer  v.  The  Stat.',  27  id.,  i:;i: 
The  State  c.  Zcnnuj,  42  id.,  541;  and  Kingen  e.  The  State,  40 
id  ,  132. 

The  more  difficult  question  is:  Wliat  was  the  etlect  of  tlic  en- 
forced absence  of  the  prisoner  from  the  court  at  the  time  the 
jury  was  discharged? 

It  was  the  right  of  the  j)risoncr  to  be  present  at  the  trial  du- 
ring all  its  stages.  "  Xo  person  prosecuted  for  any  otl'ense  ]iuii- 
ishable  by  denth,  or  by  confinement  in  the  state  prison,  or  iu  the 
county  jail,  .'  :.ill  be  tried,  uidess  personally  present  during  the 
trial."  2  fr.  iV  11.,  412,  sec.  04.  JIow  far  a  prisoner  may  waive 
this  right,  either  expressly  or  by  his  voluntary  al»seuce,  need  not 
be  discussed  here,  as  the  fpxestion  is  not  in  the  case.  ]>y  tlie 
averments  in  the  plea,  the  prisoner  waived  no  right,  and  euuld 


STATE  V.  WILSON. 


531 


leir  (leliber- 

lock,  r.  M., 

ed  to  agroo 

oil  hi'on-'lit 

!oiirt.  in  the 

ikI  wliile  lie 

county,  and 

tly;  and  the 

1  jury  ujion 

said  cause, 

d  court  that 

diet  in  said 

jury  from  a 

le  said  Roh- 

bc'iiig  tlion 

\'  t!io  slierilf 

resaid."' 

icieiit  facts. 

taken. 

y.  under  the 
n-oper.  if  tlie 
hail  ol>jectod 
_i;round  why 
ucli  case  tlie 
furtlicr  jiros- 
iid.,  ;;!•:  77,,; 
27  id.,  i:)): 
lu:  Slut,,  4t; 

■ct  of  the  en- 
tile time  the 

the  trial  du- 
otlense  ]>un- 
loii.  or  in  the 
t  during-  the 
r  may  waive 
ice,  need  not 
ise.  Hy  tlie 
t,  and  could 


not  possibly  have  been  present,  hy  his  own  act,  at  the  time  the 
jury  was  discharged. 

A  verdict  against  the  prisoner,  under  the  circumstances,  would 
have  been  erroneous,  and  some  authorities  hold  such  a  verdict 
void.  St(ft(i  V.  Ilnrlhiit,  1  Root,  90;  State  v.  Braunschreig,  36 
.\[o.,  307;  Price  v.  T/ie  State,  2  Morris  St.  Cas.,  IIOS;  Dioiti  v. 
The  C(Hi)inonioealth,  0  Penn.  St.,  384;  Dougherty  v.  The  Com- 
monicedlth,  69  id.,  2S6;  Snrol  v.  The  State,  .5  Ark.,  431.  A 
verdict  of  acipittal,  under  the  circumstances,  would,  of  course, 
forever  bar  a  further  prosecution. 

It  remains  for  us  to  decide  M'hat  ought  to  he  the  effect,  where 
no  verdict  is  rendered,  and  the  jury  is  discharged,  according  to 
the  facts  alleged  in  the  plea.  We  liave  been  unable  to  find  any 
decision  or  i)recedent  to  guide  us  in  such  a  case.  Mr.  Wharton, 
in  speaking  of  the  presence  of  the  prisoner  at  tlie  reception  of 
the  Acrdict,  says: 

"In  felonies  such  presence  is  essential;  and  cases  have  not 
been  unknown  where  the  courts  have  refused  to  permit  this  right 
to  lie  waived.  Thus  a  verdict  of  burglary  was  set  aside  in  Penn- 
sylvania, when  it  was  taken  in  the  defendant's  absence,  although 
his  counsel  waived  his  right  to  be  present."  Wliart.  Grim.  Law, 
sec.  2090;  Prhie  v.  The  O >„unonw,y(Ith, IS  Penn.  St.,  103;  A71- 
(Jriii's  V.  The  State,  2  Sneed,.5.jO;  and  Jacl'son  v.  The  Common- 
u\aJth.  19  Grat.,  6.-)6. 

In  the  same  section  the  author  continues:  "  It  is  scarcely 
necessaiy  to  say  that  in  cases  where  corporal  punishment  may 
be  assigned,  absence  during  rendition  of  the  verdict,  without 
waiver,  vitiates  the  ]n-ocecdiiigs.  And  in  fact  this  is  exacted  by 
the  common  law  form,  which  requires  the  jury  to  look  on  the 
prisoner,  ami  the  prisoner  to  look  on  the  jury,  when  the  verdict 
is  rendered.  The  better  view  is  that  in  capital,  if  not  in  all  fel- 
onies, the  record  must  show  that  the  defendant  was  present  at 
trial,  verdict  and  sentence." 

It  is  held,  too,  and  we  believe  it  is  the  universal  practice  in  all 
felonies,  that  the  prisoner,  after  verdict  and  before  sentence, 
shall  be  iiKpiired  of  by  the  court  if  he  has  anything  to  otter 
why  the  ju<lgment  of  the  law  should  not  be  pronounced  agains>: 
him.  And  even  at  this  stage  of  the  case  he  may  move  in  arrest 
of  judgment,  for  want  of  suHiclcnt  certainty  in  the  indictment 
as  to  person,  time,  place  or  offense;  and  if  his  olyections  be 


yn 


■HP, 


532 


A5IEKICAN  CRIMINAL  REPORTS. 


valid,  the  whole  proceedings  shall  be  ?et  aside,  -i  T>1.  Corn.,  875; 
2  G.  6c  II.,  420,  sec.  122.  What  the  i)i'isoner,  in  the  case  before 
us,  if  he  had  been  present,  might  have  ofl'ered  to  the  court  to 
show  why  the  jury  should  not  have  been  discharged,  or  wlietlier 
anything,  indeed,  it  is  impossible  for  us  to  know;  l)nt  we  are  un- 
willing to  adopt  a  rule  which  would  deny  liiin  the  right  to  (iti'cr 
whatever  was  in  his  power.  We  thiidc  the  facts  stated  in  tlio 
plea  constitute  a  sulHcient  bar  to  any  further  prosecution  of  the 
case,  and  that  the  court  cominitted  no  error  in  overriding  the 
demurrer.  T/ie  jtuh/mcnt  is  affinin:d. 


Nolan  vs.  State. 

(55  Ga.,  r,21.) 

Practice:    Fonncr  jvojxnyhi  —  Discharge  ofjunj  in  respondent's  (ihscurr. 

Tlie  respondent,  Iiavin<,'  boon  tried  for  homicide,  the  jmy,  while  tlie  ri'sprinil>'iit 
was  absent,  confined  in  jail,  returned  a  venliet  of  guilty  of  voluntary  iiian- 
slau<^lit(>r.  On  motion  of  ivsiKnident  the  verdict  was  set  aside.  Onbrjnij 
aiTaigmnl  for  a  sccoml  trial,  respondent  pleailed  specially  his  former  jiiip- 
ardy.    Held,  that  the  ]>lea  was  {?ood,  and  a  bar  to  further  prosecution. 

Wlien  t!:e  defendant  has  been  once  le^-ally  jnit  on  trial,  the  jury  sworn  and 
evidence  introduced,  any  mmecessary  di>cliar;re  of  the  jury  without  their 
havin;,'  rendered  a  leyal  verdict,  and  without  the  respondent's  consent,  npi'i- 
ates  as  an  adiuittid,  and  is  a  bar  to  a  further  jirosecutii-n  fnr  tise  same 
ofli.'nse. 


k* 


t 


Xor.AX  was  ])laced  on  trirl  for  the  offense  of  murder  alleged 
to  have  been  conunitted  upon  the  ])erson  of  ^lartiu  (irog.ui. 
Evidence  was  submitted  to  a  jury  regularly  im])aneled,  argu- 
ment had,  and  a  charge  delivered  by  the  court.  i>ul)st't|uiiitly, 
while  the  defeinhiut  was  contined  in  jail,  in  the  absence  of  his 
counsel,  and  without  his  consent,  the  jury  returned  a  vcnUet 
finding  him  guilty  of  voluntary  manslaughter,  and  were  dis- 
charged.  The  defendant,  at  a  subst'(|uutit  term,  moved  tluit  said 
verdict  be  set  aside  on  the  ground  tliat  it  was  rendered  and  i)ul)- 
lished  in  his  absence,  and  without  his  right  of  being  ])reseait  hav- 
ing been  waived.     The  court  ordered  accordingly. 

The  defendant  was  subsefpiently  arraigned  a  second  time  upon 
the  same  indictment,  when  lie  ])leade(l  specially  in  bar  the  i-.fore- 


m 


NOLAN  I'.  STATE. 


533 


Com.,?,r5; 

ciieo  l)cf()ro 

ic  c(.)iirt  to 
(>!•  wliothor 

we  are  iiii- 
\s\\t  to  offer 
!ite<l  ill  tlio 
:i')ii  of  tlio 
•riiliii;,^  tlie 
({ifiriiitd. 


Hi's  ((hsciia , 

lilt)  i-.>s|)rmilfiit 
oliiutiiry  iium- 
idi'.  ( hi  ^H■\\yT 
is  IViniitT  ji'iip- 
:)st'c'utioii. 
iry  sworn  :uiil 
•  witlumt  tlii'ir 
■  iiin>i'iit,  (iiii'i- 

.    fur    tlir    S.llUij 


'(kr  !illoi,''eil 

in     (tl"ni;';ni. 

leled,  iir^'ii- 
il)se(|iu'iitl_v, 
-eiiee  nt'  his 
(1  !i  venlict 
1  wi're  (lis- 
.'(1  that  Slid 
!(]  atnl  i)iih- 
)rusejit  hav- 

I  time  tipuii 
r  the  afore- 


said facts  as  constitutiiif^  liis  liaving  been  ])laced  once  in  jeop- 
ardv,  and  claimed  liis  dlscliarire, 

Tlie  })lea  was  overrule<l  by  the  court,  and  defendant  excepted. 

A  verdict  lindiiii,'  tlie  defendant  guilty  of  voluntary  manblaugh- 
ter  was  returned. 

Error  is  assigned  upon  the  al)ove  ground  of  exception. 

S.  li.  Atldiiis,  A.  P.  Addms,  for  plaiiitifl:"  in  error. 

A.  R.  Laviar,  Solicitor  General,  by  ir^Z^t^r  6^.  Charlton,  tor 
the  state. 

I'liumu.kv,  J.  One  trial,  and  only  one,  for  each  crime,  is  a 
fundamental  principle  in  criminal  procedure,  and  must  be  the 
general  rule  practically  administered  in  all  free  countries.  For 
the  public  authority,  whether  king  or  commonwealth,  to  try  the 
same  person  over  and  over  again  for  the  same  ott'ense  would  be 
rank  tyranny.  It  would  amount,  in  capital  cases,  to  cruelty  not 
unlike  that  of  keeping  a  loaded  repeater  pointed  at  the  prisoner's 
head,  and,  with  deadly  })urpose  but  bad  aim,  discharging  slowly 
oi;e  carti'idge  after  another.  Though  some  exceptions  to  the 
general  rule  are  to  be  admitted,  as  when  anew  trial  i.  had  on 
the  })risoner's  motion,  or  when  judgment  upon  avoid  indictment 
has  been  arrested,  the  transcendent  importance  of  the  rule  itself 
requires  that  the  exceptions  sho^ild  be  few,  and  strictly  guarded. 

Where  a  first  trial  is  complete,  and  its  result,  whether  convic- 
tion or  ac<juittal,  left  to  stand,  there  is  little  or  no  room  for  any 
diversity  of  opinion  on  its  sufHeiency  to  bar  a  second.  In  such 
a  case,  the  ordinary  plea  of  former  conviction,  or  of  former  ac- 
(piittal  is  ai)]>licable,  in  terms,  and  would  bo  upheld  by  all  courts 
alike.  15ut  we  reach  debataljle  ground  when  we  come  to  those 
cases  in  which  trials  have  been  begun  but  not  ended,  and  some 
others,  in  which  the  endings  have  been  ineffectual  because  irreg- 
ular or  wholly  void.  Courts  are  not  fully  agreed  where  jeopardy 
begins,  or  how  far  the  defense  of  one  in  jeoj)ardy  differs,  if  at  all, 
under  our  American  constitutions,  from  that  of  'ut/'efois  con- 
vtci  or  autrefois  acquit,  under  the  English  common  law.  In  the 
view  of  some  judges,  jeopardy  arises,  not  out  of  the  trial,  but  out 
of  the  verdict,  as  if,  in  a  combat  intended  to  be  mortal,  there  is 
no  danger  of  being  slain  until  you  are  hit. 

The  former  decisions  of  this  court  have  tended  always  to  treat 
a  jury,  when  impaneled,  sworn  and  charged  with  the  case,  as  the 


m 


>  ■ 

} 

I'' 

I 

I: 


631 


AMERICAX  CRIMINAL  REPORTS. 


k' 


/•, 


liSi 


consecnvted  body  of  peers  whose  imlividual  iniiuls  and  personal 
consciences  are  laden  with  the  prij-uner's  det-tiny.     Xot  a  jury 
simply,  hut  this  jury,  are  to  pronounce  npon  his  guilt  or  inno- 
cence.     Thcj,  and  they  alone,  are  to  ]>ass  between  the  f-tate  and 
the  jirisoner,  and  arbitrate  the  grave  matter  in  dispute.     Their 
decision  may  or  may  not  be  final,  as  against  the  prisom-r,  Imt  it 
will  conclude  the  state  forever,  uidess  annulled  at  his  instance. 
Though  he  may  avoid  it  for  any  material  error  committed  against 
him,  the  state  cannot  avoid  it  at  all,  but  is  bound  by  it  irrevo- 
cably, so  long  as  he  suffers  it  to  stand.     lie  has  a  right  to  have  it 
made  up  and  legally  returned  into  court,  so  that  he  may,  if  it 
8uits    him,    acce})t  it.     A  verdict   oii   this  trial  and  from  this 
])articular  jury,  not  on  some  future  trial  before  another  jury,  is 
Avhat  he  may  demand,  and  what  the  state,  subject  only  to  obsta- 
cles amounting  to  legal  necessity,  undcrtalces  to  ailbrd.     ''AVlmt 
eay  you,  gentlemen  of  the  jury,  am  I  guilty,  or  not  guilty?"'    To 
this  question  he  is  entitled  to  an  answer,  if  to  obtain  it  be  Mitli- 
in  the  com])ass  of  legal  possibility.     IFe  takes  the  risk  of  its  bc- 
i]ig  adverse,  and  may  claim  whatever  chance  there  is  of  its  l)eing 
favorable.     The  fear  of  the  situation  is  upon  him,  and  he  is  en- 
titled to  its  hopes,  also.     Condemnation  or  deliverance,  here  and 
now,  is  the  one  alternative.     Only  with  his  consent,  or  for  some 
legal  necessity,  can  the  crisis  bo  ended  whilst  the   voice  of  his 
jury  remain  undeclared. 

What  amounts  to  such  legal  necessity  as  will  iustifv  the  dis- 
charge  of  a  jury  without  a  verdict  is  a  snl>ject  on  which  courts 
liave  widely  ditlered.  5  Ind.,  21)0;  S  id.,  3L>.5;  U  id.,  l.",r>;  in 
id.,  357;  2(5  id.,  340,  3G0;  10  Ark.,  5CS;  3  Ohio,  229;  U  id., 
403.  The  tendency,  of  late,  has  been  to  lower  the  standard  so  as 
to  comi)rehend  "loral  as  well  as  jdiysical  necessity,  and  in  the 
region  of  the  iioral,  to  be  content  with  very  moderate  tests. 
Mistrial,  from  inability  of  the  jury  to  agree,  is  clearly  within  the 
principle.  So,  too,  is  the  case  of  voluntary  absence  by  the  pris- 
oner when  he  ought  to  be  present;  and,  upon  this  theory,  the 
cases  in  2  Sneed,  550,  and  7  Ala.,  259,  can  be  upheld.  ]5ut  we 
think  no  jiossible  expansion  of  the  rule  can  include  the  return  of 
a  verdict  durintr  the  enforced  absence  of  the  accu.scd  by  impris- 
onment,  and  the  discharge  of  the  jury  as  conserpient  thereujmn 
It  is  not  (juite  clear,  from  the  report,  that  the  case  in  2  Ala.,  102, 
was  one  of  that  kind,  for  the  cause  of  the  prisoner's  absence  is 


^r^m 


NOLAN  V.  STATE. 


535 


ul  poi-sonal 

Xol   U  jlllT 

ilt  or  iiiiio. 
le  Fttite  and 
'II I  e.  Thoii- 
■■vnv\\  l)iit  it 
i^i  iiKstance. 
tfoil  a_:^aiiist 
y  it  irrovo- 
it  to  liavo  it 
e  iiiuy,  if  it 
from  tlii.s 
Ik!!'  jury,  is 
ly  to  oli^ta- 
•a.  '-AVliat 
iiiltyr'    To 

1  it  1)C  witli- 
sk  of  it^  1)0- 
of  its  lii-'inf 

o 

1(1  ho  is  fii- 
cc,  lioro  and 
or  for  some 
voice  of  Ills 

;ify  tlie  dis- 
liicdi  Courts 
id.,  i;?ft;  ir. 
J20;  11  id., 
iiidard  so  as 

and  in  the 
lerato  tests. 
'  ^vitllin  tlic 
by  tlic  j)ris- 

tlic'ory,  tliu 
d.  lUit  we 
le  return  of 

]>y  iinpris- 

tliereujinu 

2  Ala.,  lU-', 
absence  is 


not  expressly  stated.    Ills  counsel  were  present,  and  made  no 
request  that  he  should  be  present.    The  supreme  court,  after 
ruling  that  judgment  should  be  arrested,  proceeded  to  the  consid- 
eration of  what  further  order  should  bo  nuide  in  the  case,  and 
the  order  made  was,  that  the  prisoner  remain  in  custody  to  await 
a  trial  ile  vooo.     The  facts  were  treated  as  in  all  res[)ect3  like 
those  in   T/m  People  v.  Perlctiis,  1  AVend.,  91,  in  which  latter 
case  the  ])risoner  was  confined  in  jail  wlien  the  verdict  was  re- 
ceived,    ^o  otlier  authority  is  cited  by  the  Alabama  court,  and 
we  tliiidc  77ie  Pcajtle  v.  PerJclns  is  not  a  satisfactory  authority 
upon  the  point  now  in  question.     Tlie  direct  point  for  judgment 
in  tliat  case  was,  whether  the  prisoner  could  be  sentenced  upon 
a  verdict  received  while  he  was  confined  in  jail.     It  was  held 
tliatlie  could  not;  and  the  court  went  on  to  advise  that  the  ver- 
dict be  set  aside,  and  that  there  be  a  new  trial.    This  advice,  to 
1)0  recognized  as  settled  law  in  favor  of  the  ])roposition  that  the 
prisoner  was  subject  to  a  pocond  trial,  ought,  at  least,  to  be  shown 
to  have  been  followed  by  a  second  trial;  but  no  such  fact  ap- 
pears.    If  a  second  trial  had  taken  place,  and  the  plea  of  former 
jeopardy   overruled,  whether  the  reviewing  court,  in  passing 
u])on  the  ])lea,  would  have  administered  to  the  actual  case,  the 
substance  of  its  own  advice,  as  law,  we  do  not  know.     In  10  La. 
An.,  4»''>,  is  a  case  of  misdemeanor,  on  the  line  of  trying  the 
])risoner  over  whenever  the  first  verdict  ic  quashed.     There  the 
verdict  was  recorded  in  the  Franch  languiige,  contrary  to  the 
statute  which-  required  it  to  be  recorded  in  Eiiglish  on  pain  of 
ab.solute  nullity.     From  a  Georgia  standpoint,  the  remedy  for 
omitting  to  I'ecurd  the  verdict  in  proper  time  and  manner  would 
be,  not  a  second  trial,  but  an  entry  on  the  record  nunc  pro  tunc. 
In  that  case,  however,  the  plea  made  no  complaint  of  discharg- 
ing the  jury,  but  was  simply  a  ])lea  of  former  conviction,  which 
was,  of  course,  unsupported  by  a  record  in  the  French  language, 
since,  according  to  the  statute,  no  verdict  not  recorded  in  Eng- 
lish could  be  recognized. 

In  the  caso  before  us,  the  prisoner  docs  not  stand  upon  a 
former  verdict,  but  upon  former  jeopardy,  llis  complaint  is, 
that  his  case  was  given  to  a  jury  and  never  legally  withdrawn. 
"What  that  jury  thought  of  his  guilt  or  innocence  has  not  been 
authentically  declared;  and  the  jury,  having  been  discharged  in 
his  enforced  al)sence,  and  without  his  consent,  their  opinion  of 


\W 


06 


•'O 


AMKRICAN  CRIMINAL  REPORTS. 


'  i!  'i 


ill 


m 


w 


^r 


Ilia  cfuilt  or  innocence  can  never  l)o  lej^ally  known.  For  fiin,'lit 
tliat  iipjiciirs,  every  member  of  that  jury  wn»  ready  to  accjuit  him. 
His  defense  before  it  may  liavo  been  complete  and  triumplmnt. 
The  error  of  rccelvini;  a  formal  verdict  in  the  yn-ieoner's  .absence 
would  be  nothiui,',  if  tlie  jury  had  been  retained  in  the  box,  ami 
reijuired  to  render  a  vali<l  one  in  his  ])resence.  The  miscrhiuf 
was  done  l)y  discharn'inif  the  jury  without  a!iy  le^al  necessitv. 
and  without  olttainint;;  from  it  somethin<^  that  the  law  could 
rcco^i^ni/e  us  a  verdict.  The  prisoner  was  once  fully  in  the  powor 
of  that  jury,  and  he  had  a  rii;ht  to  such  a  verdict  as  each  several 
juror  could  avow  ]>efore  liis  face.  Many  years  a^o,  in  the  couiitv 
of  Fayette,  I  witnessL'(l  the  pollin<;  of  a  jury  on  the  return  of  a 
verdi(;t  •  f  ifuilty,  where  the  eleven  jurors  first  called  declared  tlie 
verdict  to  be  theirs,  and  only  tlu^  twelfth  man  disowned  it.  The 
result  was,  that  on  recousidt-rinif  the  case,  the  whole;  twelve 
au'reed  to  a  verdict  of  not  :^uilty,.and  the  prisoner  was  acpiitted. 
The  motion  to  set  aside  the  verdict  in  the  case  at  bar  was 
made  after  the  denial  of  .".  motion  in  arrest  of  judijiiujut;  see  .■"):] 
(ia.,  J 37;  an<l  the  state  co:.teii<ls  that  such  a  motion  is  e(|uiv- 
alent  to  an  application  for  a  new  trial.  JJO  ('a.,  l!»J.  This  is  an 
eilbrt  to  draw  the  prisoner  into  a  second  jeopardy  as  the  price  of 
escapiui,'  fr<»m  the  lirst.  It  is  hard  eiioui;h  to  pay  the  price 
M-hero  a  new  trial  is  actually  moved  for  and  ^'ranted.  AVe  think 
such  a  traflic  in  jeojiardies  is  not  to  ])e  considered  as  coiuhuited 
by  implication.  The  bill  of  rii;-hts  declares  that  "  no  jtersoii  shall 
be  put  in  jeoj.ardy  of  life  or  liberty  nu)re  than  once  for  the  same 
otl'ense,  save  on  his  or  her  own  motion  for  a  new  trial,  after  con- 
viction, or  in  case  of  a  mistrial.''     Code,  sec.  5U00. 

Jdihji  .nt  reversed. 


Mautjn  vs.  State. 
(r,lGa.,5G7.) 

ruACTici;:    Jicrhdriji  nil  jury  in  dhscncc  of  counsel  for  trspondint. 

After  till' jiiiy  have  liccn  chaiyil  iunl  retired,  it  is  error  for  tlie  court  to  recall 
and  rerluirire  tlie  jury  in  the  alifence  of  the  counsel  for  tl.«'  resiHjndcnt, 
without  his  consent.  It  is  an  infringement  of  the  coiistitutiontil  inght  ut 
til"  ri'sjiondent  to  have  the  i)nvilef,n'  and  benefit  of  counsel. 

Mautin  was  placed  on  trial  for  the  oii'ense  of  simple  larceny. 


'     ;  ■' '   1  ,'2 


MARTIN  V.  STATE. 


537 


III 


H 


vc(|uit  him. 
riuinplmnt, 
r's  !iI)soiiee 
K'  l>t>x,  uiid 

0  iriiscrliiol' 
iiecessitv. 
law  could 
tlio  pdwor 

u'h  several 
the  County 
•etuni  of  a 
eclui-ed  the 

1  it.  The 
ole   twelve 

iUV|uitted. 
at  bar  was 
lit;  see  r»o 

1  i.s  eijuiv- 
llus  IS  ail 
10  price  of 

■  the  price 

Wo  think 

coiidiicted 

ensoii  shall 

r  the  same 

after  coii- 

'everstd. 


\<lent. 

iiiH  to  nvall 

ri.'."lM)iuli'iit, 

aniil  riL'ht  of 


B  hirceiiy. 


lie  pleaded  not  guilty.     The  jury  found  to  the  contrary.     Ho 
moved  for  a  new  trial  upon  the  fidlowiiig,  among  other  grounds: 

"  HecauhC  the  court  erred  in  recalling  the  jury  from  their 
room  after  they  had  been  charged  with  the  case,  and  after  they 
had  been  out  over  two  hours  considering  their  verdict,  and  giv- 
ing them  a  second  charge  in  the  absence  of  the  defendant's  coun- 
sel and  without  his  consent,  and  by  this  second  charge  may  have 
caused  the  conviction  of  the  accused." 

The  jiresiding  judge  refused  the  ground  aforesaid  for  the  rea- 
son that  he  understood  the  solicitor  general  to  say  that  counsel 
for  the  defendant  had  waived  everything,  or  he  would  not  have 
recalleil  and  rechai-ged  the  jury. 

The  solicitor  general  stated  that  wlien  counsel  for  defendant 
was  alioiit  to  leave  the  court  room  while  the  jury  were  out,  ho 
nnilei'stood  him  to  say  that  he  waived  everything. 

Counsel  for  (U'femlant  stated  that  he  only  waived  the  polling 
of  the  jury  aiul  the  recei)ti(»n  of  the  verdict  in  his  absence. 

The  court  re(iuired  counsel  for  defendant  to  strike  the  afore- 
said ground  from  the  motion,  ti)  which  the  defendant  excepted. 

The  motion  for  a  new  trial  was  overruled,  and  defendant  ex- 
cepted. 

The  judge  certifies  that  coim.-el  for  defendant  was  absent  from 
the  court  room  at  the  time  the  jury  was  recharged  without  leave. 

J^ijoti  tt'  I rriiu  for  ])laintitl'  in  error.  ('hitrh'H  J.  llarrle,  So- 
licitor ( ieneral,  by  John  Jiuthxifoi'd,  for  the  state. 

Tkii'I'i:,  J.     It  is  true  the  court  required  the  prisoner's  coun- 
sel to  strike  from  his  nuition  for  a  new  trial,  the  ground  tliat 
the  jury  were  called  back  after  they  had  retired,  and  were  again 
charged  by  the  court  in  the  absence  of  defendant's  counsel.  But 
it  still  api)t'ars  from  the  record  that  this  was  the  fact,  and  the 
reason  assigned  for  striking  this  ground  was  that  the  court  un- 
derstood the  solicitor  general  to  say,  to  wit:  that  counsel  for  de- 
fendant had  waived  everything.     Counsel  for  defendant  denied 
this,  and   stated  what  he  did  waive,  which  was  "  the  polling  of 
the  jury  and  the  reception  of  the  verdict  in  his  absence."   There 
was  then  a  misunderstanding  between  the  counsel  for  the  state 
and  the  defendant.     Should  that  mistake  or  disagreement  cmise 
the  forfeiture  or  loss  to  the  defendant  of  his  right  to  the  benefit 
of  counsel  during  one  of  the  most  important  portions  of  hia  trial, 


53S 


AMERICAN  CRIMINAL  REPORl'S. 


I J 


U 


It, ' 


^.1 


t 

MP' 
f 


the  charge  of  the  court  to  the  jury  ?  The  constitutional  guaranty 
that  "every  person  charged  witli  an  oifense  against  ll:e  hiw  sliull 
liave  the  i)rivilege  and  benefit  of  counsel,"  should  he  strictly 
guarded  and  preserved.  So  deeply  grafted  in  our  jiriu'tico  lias 
this  great  right  become,  that  none  are  so  low  or  so  poor  but  that 
they  may  rely  upon  it.  If  it  be  so  that  they  are  unable  to  re- 
tain counsel,  tlie  courts  will  appoint  counsel  for  them  without 
charge  to  tlie  defendant.  The  same  duties  and  responsibilities 
rest  upon  counsel  thus  appointed  as  if  they  received  tliu  fuUost 
jiecuniary  compensation.  Nor  does  the  fact  that  a  defendant  is 
thus  rc])resented  lessen  his  right  to  have  his  coun-^l  present  at 
all  stages  of  his  trial. 

It  is  said  that  under  the  rule  wo  hold  in  this  case,  courts 
might  be  embarrassed  in  the  administration  of  justice,  that  cases 
could  not  be  conducted  with  certainty  to  a  conclusion,  if  counsel 
for  a  ])risoner  could  stop  the  trial  by  wilfully  absenting  himself 
from  the  court  house.     To  this  objection  it  may  be  rei)lied,  tliat 
courts  arc  armed  with  plenary  authority  to  enforce  the  discharge 
of  duty  on  the  par.'  of  all  their  olKcers;  and  besides,  a  fitting  and 
proper  penalty  on  derelict  counsel  in  the  case  su])})oscd,  tliey 
could,  in  cases  when  the  necessity  arose,  re<iuire  the  defendant 
to  procure  other  counsel,  or  make  the  appointment  for  him.     If 
the  absence  of  counsel  resulted  from  a  cause  which  would  be  a 
good  ground  for  c<mtinuance,  and  it  would  not  be  proper  to  sub- 
stitute other  counsel,  it  were  better  that  there  shoidd  be  a  con- 
tinuance, or  at  least  a  temj)orary  postponement,  than  that  one 
not  skilled  in  the  law  and  who  was  largely  ignorant  of  his  legal 
rights,  and  perliaj)s  totally  ignorant  of  the  ])ractice  on  whieh 
those  rights  rested,  should  lose  a  privilege,  the  value  of  whieh 
cannot  be  estimated,  and  which,  the  organic  law  says,  shajl  not 
be  taken  from  him.     So  in  this  case,  it  would  not  jtrobably  have 
taken  much  time,  possibly  a  few  minutes  to  have  secured  the  at- 
tendance of  defendant's  counsel,  or  had    that  been   imi»ossibl(.', 
other  counsel  might  have  been  chosen   by  the  defendant  or  ap 
pointed   by  the  court.     An  efl'ort  in  that  direction  would  have 
been  pro])er.     As  this  important  privilege  was  lost  to  the  de- 
fendant in  this  case,  and  at  a  critical  stage  of  the  trial,  through 
a  mistake  of  the  state's  counsel,  at  least  it  is  ])ositively  so  stated 
by  defendant's  counsel,  doubtless  the  court  was  misled  by  it,  we 
think  that  there  should  be  a  new  trial.        Judynient  reverstxL 


!!1 


^1  f,'naranty 

0  law  sliiiil 

l>e  .strictly 

!'ac.ti('e  lias 

>'•  l»ut  that 

ahlo  to  re- 

L'lii  uithoiit 

KUisiliilitic's 

(lie  ftilk-.t 

ofcmlaiit  id 

Jirt'seat  at 

iv-'^e,  courts 
,  tliat  cases 
,  if  counsel 
11^'  liiiiiK'lf 
L'l)liecl,  that 

i  tli.schargo 
Httin-,'  !iii(l 
>o.soc],  thoy 

tlofotulaiit 
'!•  liim.  If 
would  1)0  a 
per  to  811 1  »- 
I  he  a  co:i- 
1  that  one 
f  his  lci,'ul 

oil  which 
!  of  which 
';  f^ha.'l  iK)t 
>al)ly  Iiiivo 
fed  the  at- 
tnjios.sihlo, 
suit  or  aj) 
oiild  havo 
'o  tlio  de- 
1,  tliroiiyli 
'  80  stated 

•>J  it,  we 
evenecl. 


TEOPLE  V.  LIGHTNER.  539 

Peoi'lk  v8.  Liohtxkb. 
(4!)  Ciil.,  22G.) 

PliACTiCE :    iJinchiirtfiiif/  Jiiri/  on  SiihiIhi/  —  J  'crdid  0/  assault  irith  dcadli/  weap' 
oit  muhr  indict mvtit for  iwmtidt  with  intent  to  niurdti: 

Askiiij,'  time  to  pU'atl  is  eciuivalt'iit  to  ploudiiiy:  in  wainiij,'  dftVcts  iii  tho  ar« 
riiipinii'iit. 

The  court  iimy  iiiljudicate  on  Sunday  tluit  a  jury  cannot  agree,  and  then  dis* 
cliiavf  tlicni.  1 

Where  it  iiiiix-ai-s  on  tiie  face  of  an  indictment  for  asuault  with  uitent  to  murder 
timt  tiie  asisanlt  eiiaiji'i'd  was  committed  witli  a  deadly  weapon,  the  respond- 
ent maj  be  iound  giiiUy  of  an  assault  with  a  deadly  weapon. 

Ai']'i:al  from  the  County  Court,  County  of  Cohisa. 

The  iiulictinent  charifcd  the  defendant  with  liaviuir,  on  the  23d 
(>f  October,  ISTo,  assaulted  one  J.  L.  Gaudy  with  a  knife,  with 
intent  liiin,  tlie  said  Gaudy,  to  murder.  On  the  '27tli  of  Octo- 
ber, ISTf?,  tlie  defendant  was  called  for  arraignment,  his  counsel 
l)eing  present.  When  called,  he  stood  uj),  and  the  indictmont 
with  the  indorsement  thereon,  including  tho  names  of  the  wit- 
nesses, was  read  to  him  by  the  clerk,  lie  was  then  asked  by  the 
court  if  he  was  ready  to  plead,  and  answered  that  he  was  not, 
and  asked  for  two  days  to  plead,  which  tinxe  was  given  him  by 
the  court.  The  clerk  did  not  give  the  defendant  a  copy  of  the 
indictment,  but  stated  to  the  court  that  he  had  a  copy  in  his 
olHce,  to  which  he  had  not  attached  the  seal  of  the  court.  The 
defendant  made  no  objection  to  not  then  receiving  a  copy  of  the 
indictment.  On  the  20tli,  when  the  defendant  was  called  on  to 
])lead,  he  refused  to  do  so,  and  the  court  directed  a  plea  of  "not 
guilty  "  to  be  entered  for  liim.  The  cause  was  called  for  trial 
at  the  January  term.  The  jury  retired  to  deliberate  on  their 
verdict  about  seven,  P.  M.,  Saturday  evening.  Sunday  morning, 
about  ten  o'clock,  they  were  brought  into  court,  and,  upon  being 
interroirated,  stated  to  the  court  that  there  was  no  likelihood  of 
being  able  to  agree. 

The  court,  therefore,  discharged  the  jury,  and  continued  the 
cause  for  the  term.  At  the  April  term,  the  defendant  objected 
to  setting  the  cause  for  trial,  or  taking  any  further  proceedings 
in  the  same  for  the  reason  that  the  discharge  of  the  jury  at  the 
former  term  operated  as  a  release  of  the  defendant,  and  because 
the  cause  had  not  been  continued,  nor  any  order  made  concern- 


1: 


m 


AMERICAN  CRIMINAL  RKI'ORTS. 


'.'  I 


hi  ,i 


PA4 


ing  a  retrial.  TIio  conrt  ovcrnilod  tlic  ol)jtH!tioii.  Tlio  t'luiso 
was  called  for  trial  oi)  the  l.'Uh  of  A]>ril,  lsT4.  Tlio  <k'fi'ii(l,uit, 
oil  the  trial,  offered  in  evidence  the  minutes  of  the  court  on  lliu 
former  trial,  for  the  i>nr|)o.seof  Hliowin^  that,  l»y  the  irrti^uiarity 
of  the  di.schar^^e  of  the  jnry,  and  hy  the  failure  of  the  conrt  to 
make  an  order  continuiui;  the  cause,  or  for  the  retrial  of  the  de- 
fendant, he  was  entitled  to  an  ac(inittal.  The  court  refused  to 
receive  the  |)roi)osed  evidence.  The  court  sentenced  the  defend- 
ant f(»r  a  felony,  and  he  a]>|)ealed. 

The  (tther  facts  are  stated  in  the  opinion. 

T.  J.  Udi't  and  S.  7'.  K'n'h\  for  the  a])iK'lIant,  arj^^ned  that 
there  was  in  law  no  arrai;,'nnient,  and  cited  I'enal  Code,  sec.  !i>s, 
and  no  c»hli«,'ation  to  i)lead,  and  cited  People  v.  Corhett,  L*S  Cal., 
328,  and  that  the  suhseiiuent  trial  was  a  nullity;  that  the  court 
could  not,  on  Sunday,  make  an  adjudication  that  the  jury  could 
not  ai-ree;  antl  that  the  court  could  not  dischari^e  the  jury  on 
Suiulay,  except  when  the  act  need  not  be  preceded  l»y  a  judicial 
determination  that  they  coidd  not  a«^ree,  as  when  a  verdict  was 
found,  and  cited  1  ])i6h.  Crim.  Law,  sees.  S71-S73.  Tliey  al.-o 
ar<^ued  that,  as  the  offense  charged  was  defined  by  sec.  217  of  the 
Penal  Coile,  and  the  ofl'enso  fouiul  was  defined  by  sec.  245  of  the 
Penal  Code,  that  the  verdict  was  j^ootl  only  for  an  assault;  that 
where  intent  was  one  of  the  necessary  in<^redients  of  a  crime, 
the  state  could  not  prove,  nor  could  the  jury  find  a  diflerent  in- 
tent from  the  one  laid  in  the  indictment,  and  cited  People  v. 
Iteffer,  18  Cal.,  037;  Morman  v.  The  State,  24  Miss.,  54;  and 
25  IS'.  Y.,  3»(>. 

Love,  Attorney  General,  for  the  people,  argued  that  the  de- 
fendant waived  the  copy  of  the  indictment,  and  that  even  if  tlio 
order  of  continiuince  was  void,  still  the  court  retained  jurisdiction 
to  try  the  cause  at  a  subsequent  term  under  sec.  1141  of  the 
Penal  Code. 


M<^Ki\sTuv,  J.  As  a  general  rule,  a  defendant  may  waive 
any  statutory  rii^ht  or  proceetling.  It  is  true  that  where  there 
has  been  neither  arraiijjnment  nor  plea,  the  court  cannot  sui)])ly 
an  issue,  even  after  verdict.  I'ut  it  has  been  suggested  by  tliis 
court  that  a  plea  will  cure  the  defects  of  an  arraignment,  and  it 
lias  never  been  decided  that  a  formal  arraignment  can  be  waived 
only  by  plea.     People  v.  Corhett,  28  Cal.,  321).     We  entertain 


PEOl'Li:  V.  LIOIITNKR. 


541 


The  vaxuo 

<ll-'fl'II(I;uit, 

•iirt  (III  tlio 
'•I't'i^iilarity 

!»'    COIII'I    ti) 

*'f  till)  do. 
ri'l'iisi'd  to 
le  (k'lV'ml- 


lulled  tlmt 


^A  L'N  Cal., 
t  the  court 
jury  could 
li*J  jin-y  on 
!i  judicial 
t'l'dict  was 
They  alt.0 
i-nTof'tliu 
-'45  of  tho 
••^ault;  tliat 
f  ii  ci'iiiit', 
iHureiit  iu- 

J*COJ)/c     /'. 

>.,  54;  and 

it  tho  do- 
vcn  if  tho 
insdictioii 
41  of  the 


lay  waive 
lere  tliere 
ot  sii])|)]y 
d  by  tills 
lit,  and  it 
)e  wai\'ed 
eatertaiu 


no  d(Hil)t  that  a  prisoner  may  expressly  waive  all  the  formal 
Ptcprt  aiitl  plead  when  called  up  for  arriii<,'nment;  and  there  can 
bo  no  ^'ood  reason  why  a  defendant  (present  personally  and  by 
counsel)  should  not  be  held  to  have  waived  any  detiiil  of  the  pro- 
ceeding's which  constitute  the  arrai<fnmeiit,  when,  as  in  this  case, 
ho  asks  for  time  to  j dead;  which  (jf  itself  admits  the  existence 
of  the  indictment  and  knowledi^'o,  or  opportunities  for  acipiirini^ 
knowled.m',  of  its  contents,  lie  asks  for  time  to  plead,  und  (ob- 
tains the  delay  on  an  implied  stipulation  that  he  will  jdcad  at 
the  eN])iration  of  the  time. 

I'nder  our  system  of  practice,  the  common  law  continuarces 
have  no  place,  and  in  the  case  where  a  jury  liave  failed  to  ax-rco, 
and  been  dischar<,'ed  for  that  reason,  the  defendant  may  be  tried 
n^ain  at  the  same  or  next  term  without  any  order  of  postpone- 
ment. The  ])()wcr  to  dischar^'e  a  jury  on  Sunday  includes  tho 
power  to  adjudicate  the  fact  that  the  jury  cannot  a<j;ree. 

The  indictment  cliar<'es  the  defendant  with  an  assault  with  in- 
tent to  commit  murder,  committed  "with  a  certain  large  knife." 
The  verdict  was  to  the  effect,  "(fuilty  of  assault  with  a  deadly 
weapon,  with  intent  to  inflict  upon  the  person  of  another  a  bod- 
ily injury  without  cause  or  excuse." 

Defendant  claims  that  this  verdict  was  unauthorized,  as  tho 
oil'ense  of  which  the  defendant  was  found  guilty  is  not  included 
in  that  charged  in  the  indictment. 

The  defendant  was  charged  with  an  assault  with  a  deadly 
weajxni.  If  he  was  guilty  of  an  assault  with  a  deadly  weapon, 
"without  cause  or  excuse,"  the  jury  were  justified  in  finding  — 
as  the  court  wouhl  have  been  justified  in  charging  as  a  matter 
of  law — that  his  intent  was  to  do  bodily  harm.  The  crime  of 
which  the  defendant  was  found  guilty,  therefore,  was  the  crime 
for  which  he  was  indicted  —  less  the  specific  intent  to  murder. 
I\oj>/e  V.  Jhnu'Jmu,o  Cal.,  133;  I*eople  v.  I'Jrif/lis/i,  30  id.,  214; 
State  r.  Jiohei/,  S  Xev.,  312.  In  Peojth  v.  Min-at,  45  Cal.,  284, 
this  court  said:  "  AVe  are  of  opinion  that  under  an  indictment 
for  an  assault  to  commit  murder,  a  conviction  of  an  assault  made 
with  a  deuiUy  weai)on,  to  do  bodily  harm,  cannot  be  supported 
unless  it  sufKciently  ai)pears  from  the  face  of  the  indictment 
that  the  assault  was  made  with  a  deadly  weapon." 

Judgment  and  order  affirmed. 

RnoDKs,  J.,  did  not  express  an  opinion. 


542 


AMERICAN  CRIMINAL  REPORTS. 


1    ,!j 


Statk  vs.  Madigan. 

(48  Ind.,  41G.) 

PHACTir'E:    D'tsudsK'ui'j  valid  hulktment  nithoiit  cause. 

The  power  of  eiiterinfir  a  noUe  prosequi  bclonf^  to  the  prosecuting  officer  who 
represents  the  govenuuent,  iuul  not  to  the  court. 

BiDOM':,  J.  Tlic  record  in  this  case  shows  us  that  a  good  in- 
dictment, for  unlawfully  selling  intoxicating  liquor,  was  properly 
found  against  the  appellee  by  the  grand  jury,  by  them  regularly 
returned  into  court,  and  the  case  ])laced  ujmn  the  docket  fur 
trial;  and  that  '*  the  court  of  its  own  motion,  without  arraigning 
the  defendant,  without  hearing  the  testimony,  and  without  rea- 
son given,  dismissed  the  cause  and  discharged  c  defendant, 
and  rendered  the  following  judgment:  "It  is  tlu :  roru  con- 
sidered by  the  ci»urt  that  said  defendant,  as  to  said  iu'iictnient, 
go  hence  without  day,"  to  all  of  which  the  state  by  her  pro- 
scouting  attorney  properly  excepted,  and  has  ajipealed  to  this 
court. 

In  reviewing  a  proceeding  so  erroneous,  so  arbitrary,  and  so 
unjudicial  as  the  one  disclosed  bv  this  record,  our  dutv  is  very 
plain. 

The  judgment  is  reversed;  the  cause  is  reman<]ed,  with  direc- 
tions to  reinstate  the  case,  and  for  further  proceedings  according 
to  law. 

NoTT..  —Tin-  niiirnl  of  this  case  niny  he  niaile  a  littli'  clearer  liy  tlie  folimviiii,' 
comical  story,  told  liy  l/ird  ('aiiipl)ell:  Cliii'f  .Iiistii'c  Holt  haviiif^' coniinittcd  ono 
of  a  brotherliood  of  swindlers  wiio  called  tiieniselves  ]irnpliets,  named  .Inlm  At- 
kin!',  to  take  his  trial  tor  si'ditiiMis  lantfwi.pe,  another  of  them,  nanii'd  Lacy,  calli'd 
at  the  Chit'f  .Fustic's  house  in  15edford  Row,  and  ilesired  to  see  him.  Stirniit: 
"  My  lord  is  unwell  to-day.  ami  cannot  see  company.  Jaic;/  (in  a  very  solium 
tone):  "  Adiuaiut  your  master  tliat  I  nuist  see  him,  for  I  hriufj  a  messa;,'e  to  liir.; 
fi-nm  tiie  LonHi(,d."  Ilic  Cliief  .Justice,  liavin)»  ordered  Lacy  in  and  lU-mandt  d 
hi.s  business,  was  thus  addressed:  "I  come  to  you  a  pi-ojihet  from  the  Lord 
God,  who  has  scut  mo  to  tliei-,  and  would  ha\'e  thee  j,Tant  a  tiollr  prnsnjiii  for 
Jolui  Atkins,  liis  servant,  wliom  thou  liast  sent  to  itri.Min."  Ilolt,  (\  ,T.  :  "'i'limi 
art  a  false  jnoplu't  and  a  lyin^r  knave.  If  the  Lord  (rod  had  sent  thee,  it  would 
have  lieen  t.)  the  Attrrney  General,  for  he  knows  that  it  liclonyfoth  not  to  the 
Chief  .Tusti.i'  to  jrraut  a  )wlh-])r<»ii'iiii;  t>ut  L  a.s  Chiof  .lustiec  can  f,'rant  a.  war- 
rant to  commit  thi.'  to  hear  him  company."  Tliis  wa«  inuucdiatoly  done,  and 
Iwth  i^rophets  weie  convicted  iuid  punished.  Lives  of  the  Chief  Justice,i,  vol.  o, 
p.  .59. 


If,'  officer  who 

a  i»'(t()(l  ill. 
IS  properly 
n'i,'ul;irlj- 
<I<'('l<et,  fdi- 
iirr;ii;,';ii!ii^f 
itiiout,  rca- 
(iefcjuliiiit, 
"fore   ou'i- 

ll'lictDic'lit, 

,V  liLT  pro- 
IlhI   to  tliis 

iiry,  ,111(1  ,^0 
nty  h  vi'iT 

>vith  (liri'c- 
<'^c•curcliIl^r 


till'  fnllowiji;,' 
'Hiiiiitti'il  1)11'; 
I'll  Jnliii    Af- 

J.iU'y.  liiil",) 
II.     Srrnnit: 

ViTV    soli'iilll 

■^sayc  (()  liir.i 

I  (It'DlUllilcd 

II  111.'     Lnivl 

/irasrijiii  i'ov 
./.  ;  "Tliuu 
I't',  it  wiiiil,! 

not    to    tilt' 

rant  :i  w;ir- 
y  <lono,  iiiul 
fiV&s,  vol.  o, 


REICH  r.  STATE.  5^3 

Rkicii  vs.  State. 
(53  Gil.,  73.) 

Puactick:    Alien  grand  Juror  —  Oath  to  iv'itiics.^  ho/ore  fjraml  jury  —  Autrefois 

conriet. 

A  BpiX'iiil  pli'ii  to  iin  inclictnicnt  that  one  of  the  jurors  who  founil  it  was  an  alieu 

is  a  tfood  plea. 
\  siieeial  plea  (o  an  imlietnii'iit  that  the  witnesses  on  whoso  evidence  it  was 

found  were  not  proiierly  swoni,  which  does  not  name  the  witnesses  or  specify 

the  oath  they  took  is  bad. 
A  sjieeial  plea  to  an  indietnient  of  autrefois  convict  before  a  court  which  had  no 

jurisdiction  over  the  ottense  is  bad. 

IIkk  ir  was  presented  for  tlie  offense  of  keeping  open  a  tippling 
house  on  tlie  Salibatli  ilay.  On  arraignment  he  plea<lci^  ns  fol- 
lows: 

1.  That  on  September  0,  1S73,  ho  was  taken  before  the  mayor 
of  the  city  of  Columbus,  charged  with  the  same  otlonse  as  is  set 
out  in  tlie  presentment,  and  convicted  of  the  same;  that  said 
judgment  remains  in  full  force. 

i'..  That  A.  Cttlman,  one  of  the  grand  jurors  who  made  the 
]irost:Hn'»'iit,  was  not  at  that  time  a  citizen  of  Georgia,  but  was 
then  a  subject  of  (Ireat  Britain. 

3.  That  tlio  witnesses  upon  whose  testimony  .'^aid  presentment 
was  found,  were  not  sworn  by  or  before  the  court;  that  if  any 
oath  was  administered  to  them  it  v;as  not  an  oath  in  these  words: 
''Tlie  evidence  you  sh-dl  give  the  grand  jury  in  this  j)resentn\ent, 
the  State  of  (reorgia  against  V.  Keich,  shall  be  the  truth,  the 
whole  trutli,  and  notliing  but  the  truth,  so  help  you  God." 

On  diMiiiUTcr,  said  jdcas  were  stricken,  and  defendant  excepted, 
lie  tlit-n  ])leade!'  gi;!'ty. 

Error  is  asrigued  uptm  the  above  grounds  of  exception. 

//.  /..  /A  ,/,^///.v,  M.  11.  nhnnlfml,  C.  IL  Ji'nssc!I,ior  i.laint- 
iti'  in  error. 

)!'.  A.   fJffh',  Solicitor  General,   by  Pxiloihj  i{i  Bmnnon, 
for  the  state. 

IMcrw.  ,T.  1.  These  pleas  as  to  the  oath  of  the  grand  jury- 
men are  eiitirelv  too  uncertain.  They  do  not  sav  what  witnesses 
they  refer  to,  nor  di>  they  jioint  out  in  what  the  oatli  wa?  defect- 
i\e.    I'leas  ought  always  to  present  nuitter  on  which  issue  may 


til 


^IH^FSSI 

''!  w 

':.?1S            jj 

%     i 

^t  mt't  iw%  'jM 

54i 


AMERICAN  CRIMINAL  RErORTS. 


1)0  taken,  and  should  contain  sucli  a  statement  as  will  notify 
the  opposite  party  what  he  has  to  meet. 

2.  "We  think  the  plea  that  one  of  the  grand  jurors  was;  not  a 
citizen  is  a  good  ])lea.  Section  3910  of  the  code  clearly  ■■  a- 
plates  that  a  grand  juryman  must  he  a  citizen,  >  '  whilutlio 
constitution  does  not,  in  terms,  require  it,  and  only  uses  the 
word  "  i)ersons,"  yet  there  is  nothing  in  this  inconsistent  witli 
the  code;  and  this  has  long  heen  the  law  of  this  state.  It  wm 
also  the  common  law.  1  Chit.  C.  L.,  307;  5  I'ac.  Abr.,  312;  I 
r.ish.  Crim.  L.,  705;  3d  Co.  Inst.,  34;  9  Te.v.,  r,.j;  5  I'ort.  (Ala.), 
4'<4:.  So,  too,  we  think  the  objection  may  he  taken  hy  si)ecial 
])lea.  There  are  some  authorities  seemingly  to  the  eil'iil  iliat 
the  challenge  must  he  to  the  jury  before  bill  tiled;  hut  it  scCiii.s 
to  us  that  this  is  unreasonable.  How  is  a  defendant  to  know 
that  this  secret  inquest  is  proceeding  to  iii;<l  a  bill  against  him? 
AVhatever  objections  there  may  be  to  a  grand  juror,  that  a  ])arty 
cai  make,  ought  (and  this  has  always  been  the  practice  in  this 
etr.te)  to  be  made  at  the  trial,  and  before  j)leading  to  the  merits. 
And  such,  we  think,  was  the  jtractice  in  Ivigland.  1  Chit.  C. 
L.,  3(»7;  IJac.  Abr.,  Juries,  (a.)  7'21. 

3.  The  ])ower  to  ]>unish  for  selling  without  license  <l()es  not, 
in  our  judgment,  include  the  ])ower  to  ])  iiiish  for  keeping  (i|)en 
doors  on  Sunday.  Tins  may  be  committed  though  the  oH'cmler 
have  liceiise;  and  the  ollense  niiiy  be  committed  without  any 
selling  at  all.  The  crime  or  misdemeanor  consists  in  the  oliensc 
the  act  gives  to  good  citizens,  and  the  breach  of  the  (juiet  and 
orderly  customs  of  the  daj'.  It  is  a  sjiecial  oileiise,  niuler  tiie 
co(h>,  iuiil  the  power  to  punish  for  it  having  been  ass'imed  by 
the  state,  it  <Ioes  not  belong  to  the  city.  The  trial  for  the  ollense 
before  the  city  court  was,  therefore,  illegal.  The  otlense  w;is  a 
crime  against  the  state,  and  not  a  mere  breach  of  the  city  or<li- 
nances. 

Judgment  reversed  on  the  ground  as  to  the  alien  grand  jury- 
man. 


■  ii 


PRINCE  r.  STATE. 


545 


n 


will  notify 
3  was  not  a 

•Iv   .■  ;u. 

'  w  liilo  tliv) 
ly  uses  tlio 
isteiit  witli 
te.  It  W; 
.1)1-.,  312;  1 
•ort.  (Ala.), 
l»y  special 
ell'ii  I  iliat 
ut  it  scciii,. 
lit  to  know 
gainst  liiiii? 
hat  a  ]tai'ty 
ticc  ill  this 
tlio  merits. 
1  Chit.  C. 

>c  <l<)Os  nut, 
epiiii;;  opi'ii 
he  (jU'riidfr 
ithoiit  any 
the  (ill'cnse 
L!  (juiet  ami 
,  MiKJer  tiio 
i>si,:iii(,'(l  liy 
the  olleiiso 
eiise  was  a 
e  eity  onli- 

^raiid  jury- 


Prince  vs.  State. 

(44  Tex.,  m.) 

Practice:    CiimuJatire  sentences  —  Ihirghm)  —  Ejlfect  of  recent  jMssessmt. 

Except  l)y  virtue  of  some  statutory  provision,  every  sentence  must  begin  to  nui 
from  its  date,  and  its  rannlng  cannot  be  postponed  until  tlie  ti.'rmination  of 
a  fonner  sentence. 

It  is  not  error  to  refuse  to  charj,'e  that  "  possession  of  stolen  goods,  without  oth- 
er evidence  of  guilt,  is  not  to  be  regiirded  us  presumjitive  evidence  of  bur- 
ghuy."  in  a  case  where  there  was  other  CN-idence  of  guilt. 

TtKKVKS,  J.  The  appclla,nt  complains  that  the  court  erred 
in  the  instruetions  given  '••  the  jury,  and  for  refusing  to  give 
the  instructions  asked  by  appellant.  Appellant  asked  two 
charges;  one  of  them  was  given  and  the  other  was  refused,  aiid 
in  place  of  it  another  charge  was  given  l>y  the  court,  as  stated  in 
the  hill  of  exceptions.  The  charge  asked  and  refused  was,  in 
substance,  that  possession  of  stolen  goods,  without  other  evidence 
cif  gnilt,  is  not  to  be  regarded  as  presumptive  evidence  of  Inir- 
<;lary. 

The  court  charged  the  jury,  in  substance,  that  if  the  defendant 
Avas  found  in  possession  of  property  which  was  stolen  from  the 
house,  and  his  ])ossession  was  recently  after  the  theft,  and  that 
lie  failed  to  give  a  reasonable  account  of  his  possession,  they 
might  take  these  circumstances  into  consideration,  with  all  other 
facts  and  circumstances  in  evidence,  to  enable  them  to  determine 
whether  the  defendant  was  guilty  or  not  of  the  otl'ense  with 
which  he  was  charged.  The  instructions,  taken  as  a  whole,  are 
as  favorable  to  the  defendant  as  he  had  any  right  to  expect,  i:i 
view  of  the  evideiije  in  the  case. 

It  is  further  assigned  for  error  that  the  court  erred  in  over- 
ruling tlic  defendant's  motion  for  a  new  trial.  The  ground  of 
the  motion  for  a  new  trial,  in  addition  to  the  grounds  already 
noticed,  is  that  the  verdict  of  the  jury  is  contrary  to  the  law  and 
the  evidence.  Witiiont  discussing  this  assignment,  we  think 
the  evidence  fully  supports  the  verdict  of  guilty,  as  found  by  the 

Jn'T- 

It  is  further  assigned  for  error  that  the  sentence  of  the  conrt 

is  erroneous,  in   that  it  is  cumulative,  and  to  I)e  carried  into  ef- 
fect in  the  future.     The  character  and  force  of  thi:;.  objection  will 
Vol..  I.  -  :J5 


54G 


AMERICAN  CRIMINAL  RErORTS. 


i:.-:, 


If 

p  It 


,  !i 


v\ 


more  fully  appear  from  the  following  entry  in  tlic  jiulgnient  of 
the  court:  "It  further  appearing  to  this  court  that  at  this  term 
of  the  court  the  said  defendant,  Anderson  Prince,  has  been  tried 
and  convicted  of  the  offense  of  theft  from  a  house,  under  indict- 
ment Xo.  1522,  on  the  docket  of  Victoria  county,  and  for  which 
he  has  been  sentenced  to  be  imprisoned  in  the  state  jieiiitentiary 
for  a  term  of  two  years,  it  is  ordered  by  the  court  that  at  tiieex- 
l>iration  of  the  last  said  term  of  imprisonment,  and  in  ca^^e  the 
judgment  in  this  case,  Xo.  1521,  shall  be  affirmed  by  the  supremo 
court  of  Texas,  to  which  the  defendant  has  a]){)ealed,  then  the 
sentence  in  this  cause,  after  the  execution  of  the  sentence  in  cause 
Xo.  1522,  shall  be  carried  into  execution." 

Courts  of  the  highest  authority  have  differed  on  the  question  .is 
to  whether  one  term  of  imprisonment  was  to  commence  on  the  ter- 
mination (»f  the  punishment  on  :uiotlier  charge,  or  whether  the  term 
should  commence  from  the  judgment  and  sentence  of  conviction 
and  run  concurrently.  The  former  is  maintained  in  the  states 
of  Connecticut,  I*ennsylvania,  Massachusetts  and  Cali Torn ia,  and 
l)erhaps  other  states.  /State  v.  Smith,  5  Day,  175;  2fith  v.  The 
Ouiunomcealt/i,  IZ  Pa.  St.,  (IHl;  JCitd  v.  The  Vonimoinncalth.^ 
11  1\g\.  (Afass.),  5S1;  The  l\<>ple  v.  Forhes,  22  Cal.,  i:}5. 

On  the  contrary,  itwas  held  by  the  supreme  c^uirt  of  Indiana, 
in  the  case  of  Jfi/hf,  W(H'(h)i  <>f  the  State  PriKo))  v.  Allen,  11 
Ind.,  3S0,  that,  in  the  absence  of  a  statutory  ])r(ivisi(»n  author- 
izing it  to  be  done,  the  court  had  no  power  to  order  a  term  of 
imprisonment  in  the  penitentiary  to  commence  at  a  future  peri- 
od of  time. 

The  revised  statutes  of  Xew  York,  as  cited  by  the  supreme 
court  of  California,  in  the  case  of  the  People  v.  Forhci*,  ti^  Ca!., 
135,  ])rovide  that  in  case  of  two  or  more  convictions,  before  sen- 
tence on  either,  the  term  of  impristmment  upon  tin;  second  or 
subsequent  conviction  shall  commence  at  the  termination  of  the 
previo\is  term  of  imprisonment.  The  criminal  coik;  of  Ken- 
tucky contains  substantially  the  same  ])rovisioii.  Dcfore  the 
Kentucky  code  was  adopted,  the  court  of  apjieal^  of  that  state 
held  that  the  court  had  no  ])ower,  independently  of  a  statute,  to 
make  one  term  of  imprisonment  commence  at  the  «xi)iration  of 
another.  Jitines  v.  WarJ,  Keejyer  of  tJie  State  Penitenthn'ij,  2 
Met.  (Ky.),  271. 

The  court,  referring  to  cases  at  common  law.  Mhere  the  pris- 


rniNCE  i\  STATE. 


jiR]<,'inent  of 
iit  this  term 
:is  l)Oon  tried 
imler  iiulicl- 
ul  for  uliieh 
]ioiiiteiiti;tiy 
lat  iit  theex- 
1  in  c'liso  tlie 
the  *^iii)reiiio 
0(1,  tlieii  tlio 
;nee  in  ciuise 

e  question  as 
ce  on  tlie  ter- 
tliertlietorni 
>f  conviction 
in  the  states 
ilirornia,  and 
.]A//As'  V.  Ug 
iimomncaWif 
il.,  l.T). 
t  of  Indiana, 

V.  Allen,  11 
.<ion  autlior- 
ler  a  term  of 

future  ])eri- 

tlie  sujirenic 
rhr>^,  '■l-l  Ca!., 
S  hefore  sen- 
le  second  or 
lation  of  tlie 
i)de  of  Keii- 
IJcfore  the 
:)f  that  state 
a  statute,  to 
!X])iration  of 
iltettlittry,  '1 


re  tl 


oner  was  sentenced  to  several  terms  of  imprisonment,  one  to 
commence  after  the  conclusion  of  the  others,  said:  "but  it  may  ho 
remarked  that  in  all  these  cases  the  punishment  by  imprison- 
ment was,  by  law,  at  the  discretion  of  the  court.  The  tin)e  tliat 
the  ])risoner  was  to  be  confined  was  not  determined  by  the  jury, 
l)ut  upon  his  beiui;  found  g'uilty  of  the  oll'ense  contained  in  the 
indictment,  his  punishment  was  discretionary  with  the  court,  and 
the  term  of  his  imjirisonment  was  ii.xed  by  it.  Tlie  court,  having 
the  power  to  prescribe  the  length  of  time  the  imprisonment  wad 
to  continue,  might  sentence  the  prisoner  to  several  terms  of  im- 
jirisonmeiit  in  succession,  where  he  was  charged  witli  several  of- 
fenses, because  it  could  inllict  the  same  amount  of  punishment 
upon  him  in  each  case  separately,"  referring  to  the  case  of  Jlc.c 
V.  WiUcft,  4:  Bnr.,  325. 

"We  think  the  correct  rule  was  enunciated  by  the  courts  of  In- 
diaiiii  and  Kentucky  in  the  cases  referred  to.  The  criminal 
code  of  Texas  makes  no  provisions  authorizing  the  court  to  ac- 
cumulate the  terms  of  imprisonment  in  cases  like  the  [)resent. 

It  is  not  shown  th:it  there  was  any  connection  between  the 
theft  as  charged  in  the  indictment  >so.  1522,  and  the  burglary  as 
charged  in  indictment  No.  1521.  The  code  provides  that  the 
jury  shall  assess  the  jtunishment  in  all  cases  where  it  is  not 
lixed  by  law.  The  judgment  and  sentence  of  the  court  have  ref- 
erence to  tlie  ])unishme!it  as  assessed  by  the  jury,  and  the  pris- 
oiver  is  conveyed  to  tlie  penitentiary  immediately  after  final  sen- 
tence to  uii<lergo  liis  punishment. 

We  ari'  of  opinion  that  the  court  erred  in  directing  that  the 
scnteius-  in  this  case  sh<iuld  be  carried  into  execution  after  the 
expiraf!«>n  of  the  terms  of  imprisoinent  in  case  Xo.  1522.  This 
t  :itry  will  not  reipiire  a  revi'rsul  ()f  the  judgment,  but  it  may  bo 
refoniKMl  and  corrected  l)y  su|ireme  court  as  provided  by  article 
o2(l^.  rasclial's  Dig.  It  is  therefore  ordered  that  the  entry  of 
the  judgment  in  this  ca>e  be  so  reformed  and  corrected  as  that 
the  perioil  of  imitrisonmeiit,  to  wit:  two  years,  as  fixed  by  the 
jury,  shall  commence  from  the  judgment  and  sentence  of  con- 
viction in  this  case,  and  not  from  the  expii'ation  of  tlie  term  of 
iinpris(»nmeut  in  case  Xo.  1522,  as  ordered  by  the  district 
Court  in  the  entry  of  the  judgment.  The  judgment  is  reformed 
and  corrected  uccordiniilv.  lieforvicd  and  con't'cted. 


ere 


le  pr 


IS- 


Iff 


9 


-Hi' 


id 


!«  h 


t4S 


54S 


AMERICAN  CRIMINAL  RErORTS. 


Note. — In  the  case  of  Mills  r.  Owi.,  V^  Pi\.  St.,  GHl,  tlie  qnostion  of  tlio  [lown  of 
the  court  to  impose  sentenci'  of  iinin-isoiinient  to  licfrin  on  tin'  oxiiinition  of  u  jiiiov 
term  of  imprisonment  was  not  raised  by  counsel  or  discussed  by  the  court,  lint 
Kucli  a  sentence  having  heen  i)assed  and  liie  ])rior  judy^ment  havinff  hren  reversed, 
the  sni)reme  court  modific'il  the  sentence  so  as  to  make  tiie  term  of  imprisoiniiint 
begin  to  run  from  the  exjiiratiou  of  yet  another  tenn  of  imprisonment  to  wliicli 
the  prisoner  liad  been  previously  sentenced.  15ut  this  wius  done  without  any  dis- 
cussion as  to  the  power  of  the  court  to  pa.ss  cunndative  sentences. 

In  .S7((/('  r.  Smith,  5  iJay  (Conn.),  17-),  the  prisoner  was  twici;  conviiii'd  at  the 
same  term  of  passin<r  counterfeit  notes  on  two  ditl'erent  indictments.  Outlie 
second  conviction,  sentence  was  passed  directin;,'  the  ti'rm  of  im)irisonmeiit  to  he- 
gin  on  the  e-xpira*ion  of  the  tenn  of  imjjrisonnu'nt  to  whicli  he  had  been  sentenceil 
on  the  first  convi  tion.  Jt  was  urged  on  ln'half  of  the  prisonerthat  this  modi'nf  ;u- 
cumulatinij:  the  ternu  of  iuipriMjiimeut  was  "  novel,  witlumt  jirecedent,  uruel  mul 
illeyal."  The  suiiremc  court,  however,  held  that  tiie  practice  was  lejiul  and  ino])- 
er  and  in  accordance  witli  theusaj,'e  of  tlie  couds  in  (!ounecticut  for  many  \i;un. 
No  authorities  are  cited  by  the  coiu-t,  and  I^d.minds,  .F.,  dissented,  in  Kile  r. 
Com.,  11  Met.,  TjSl,  where  the  prisoner  hail  been  sentenced  to  impiisomueut  fur 
four  years,  to  talce  etii'ct  from  and  after  tlie  expiration  of  three  former  sentenn-s, 
the  thri'e  fi inner  .judn-nients  haviuH!  been  rtiversiid,  it  was  objected  tl;at  tlie  juil;^- 
nient  wasen-oneous  and  void,  because  there  were  not  three  former  si.'ntences,  Ic^mI 
and  valid,  iUid  therefore  no  fixed  time  for  the  punishment  on  this  si.'ntenee  to 
be^in. 

Th(!  court  say:  "The  court  are  all  of  opinion  that  it  is  no  error  m  a  judgment, 
in  a  criminal  case,  to  make  one  term  of  imprisonment  commence  when  another 
tenuiicates.  It  is  as  certain  as  the  natiu'e  of  the  case  will  aduut;  and  tlievr  i.-  im 
other  mode  in  which  a  party  may  be  sentencid  on  several  convietinns.  Tli(i\ii;li 
unci'Hain  at  the  time,  deiieiidiiigon  a  i>ossiiilecontini;('uey.  that  the  imiirisnniiKiit 
on  the  former  seiit<'nce  will  be  i-emitteil  or  >lioi1eMed,  it  will  be  made  ceHani  Ky 
the  event.  If  the  jirevious  sentence  is  sliortnied  liy  a  re^"-;al  of  tli'' judt^iiieut  m- 
a  panlon,  it  thru  expires,  and  then  byit>tirnis  the  sentence  in  (jne>t  inn  take- 
cflect,  as  if  the  previous  one  had  expired  liy  laps.'  of  time.  Nor  will  i.  make  any 
ditlei-enee,  (hat  the  previous  judfj;'ment  is  reverseil  forerrni-.  it  is  voidable  Hilly, 
ami  not  void;  and,  until  reversed  by  a  judgment,  it  is  to  be  deemed  of  full  tuvi' 
and  eliect ;  and  tlii)U}j;h  erronemis  an<l  subsei|neiilly  reversed  on  ermr,  it  i-  unite 
KulHcii'ut  to  fix  tJu'  term  at  which  another  seiit'in  e  shall  t.ike  eliect.  ,1  luliiim  i,t 
(i/}inni(L     No  authorities  were  cited  in  tJiis  ca.-e  to  tli.    point. 

In  the  case  of  ]'oi/ilf  r.  Farhi  s,  2'2  Cal.,  l^lti,  the  opinion  of  the  couil  Ls  ro- 
])orted  Its  follows: 

NonroN,  ,1.,  delivered  the  opinion  of  thi'  court.  Cui'i;,  ('.  .T.  and  Cuik  i:i.ii,  ,T. 
concurrine;: 

The  (lei'endant  is  held  in  custody  by  virtue  of  li\e  sepiirate  sentences  pu>scil 
njion  him  on  (he  sixth  day  of  September.  l'-'(r_',  by  the  ri'corder's  court  of  the  city 
and  county  of  San  I'rancisco.  One  adjiulues  that  he  be  imprisoned  f'.i ninety 
days.  Each  of  the  others  adjiidues  tli.it  he  bi'  imprisoned  for  I  he  pi'iiiul  uf  niiieiy 
days,  "  said  term  to  eon. menre  at  the  expiritlDii  of  previous  seidences."  Hav- 
ing: been  impiisi)iied  niore  than  ninety  da\  -.  he  claims  now  to  le  disih  oevd  upon 
the  fjfround  that  the  sentcMices  to  comnieiK  e  at  (he  expiration  of  pre\  loiis  si'iil^'ii- 
ces  are  void,  for  not  fixing'  any  detinite  time  for  tln'  commeiicenuuil  of  the  im- 
prisonment. 


rillXCE  V.  STATE. 


549 


of  UiojioNnnof 
■iitioii  of  ii  i)rior 
tlie  court,  lint 
f;- broil  ivvi'iscd, 
if  iiiiprisoiiiiiriit 
niiK'ut  to  wliirh 
vitliont  iiiiy  (lir- 

•onvic'tL'il  at  tlio 
luciits.  On  tin; 
isniiliii'iit  t(i  lir- 
lii'I'll  M'litriHcl 
this  modrirf  ;|i-. 

lent,  t-nirl  ^iinl 
•  Icji'al  and  iimp- 
fiir  many  \r;iiv, 
t<'(l.  In  h'lh  r. 
iinn'isonnu'iit  I'ni' 
onucr  scntfiiiiv, 
I  U::d  tlir  jiid- 
■rsi.'iiti'iici',-:,  Ii';,m1 
tlii.s  sentence  to 

111  ii  jiidgiuent, 
\c  wlieii  annllift 
;  illlil  tlierr  i>  lie 
ictions.  'riioii-h 
lie  ini|>ris(ini]icMt 
iiiaih'  eertani  liy 
til"  jiid;;nii'iiter 
II    Cille-,tii'll   tak'i'-; 

will  i.   make  any 

is  vnidalili'  only, 

lied  of    fnll  f.ilrv 

t'lTor,  it  i-  (luiti- 

I'ret.      ,/l(il(/i)i(  1(1 

till'  ciniil   L-  re- 
nd ('ii(.i(  i;i.ii,  ,1. 

Sentcnei'-  l>a>-i'd 
eolirt  of  the  lity 

soiled  f'M  niiirty 
1 1' ail  id  of  ninety 

[iteners."      Ilav- 

diseli     I  !;vil  U|inU 

|llV\  lOll.N    M'lll.MI- 

moiit  of  the  im- 


As  a  goneriil  nilo,  n  jiul),'nient  should  he  cprtiiiii  and  tlofiiiito,  aiul  coniiileto  in 
itself,  so  that  wliat  it  requires  to  lie  done  may  he  known  without  resort  to  any 
tliijij,'  oiit^^ide  the  record,  yet  it  seems  to  liave  heen  a  common  jiracticc  in  crim;- 
n:d  comts  to  enter  jud>,')iiei)t.s  of  imprisonniontto  commence  at  the  expiration  of 
seiiteiiees  in  other  cases.  Kliii/  r.  n'ill,-es,  4  Hurr.,  IVJ.');  Connnoiurotlth  r.  haflw, 
1  Viri,'.  Ca-'cs,  l.")l;  Sld/i-  r,  Smilfi,  '>  l)ay,  17");  J,'i(ssvll  r  ConumiucvaUh,  7  !<(}ry. 
iV  Hiiwle,  4><9;  Jlroirn  r.  Conniioiiintil/Ji,  4  liawlt!,  'ioO. 

Ill  the  cii.se  of  /iroini  r.  ('(niniioiiin-alth,  the  sentence  was  that  the  defendant's 
iniprisiMinieiit  should  hejfiii  "  immediately  after  the  expiration  of  the  sentenco 
passed  111)011  him  for  tho  larceny  of  the  goods  of  Hiram  .lones."  'J'lie  judgment 
for  the  laiveiiy  of  till!  goods  of  Hiram  .hiiies  was  reversed  on  appeal,  and  it  waa 
elainii'd  that  the  other  judgm.'ut  therel.y  heeaine  a  nullity.  Ihit  it  was  decided 
that  the  jiidginonfc  in  tho  one  case  hi'ing  in  force  until  it  wiw  reversed,  the  expirii- 
tiim  of  the  sentence  occurred  upon  its  reversal,  :uid  (hatthe  second  imprisonment 
hcgaii  from  that  time.  In  that  eiuse,  therefore,  a  sentence  wa.s  held  valid  which 
was  not  only  indefinite  on  its  face,  and  could  only  bo  ll^l.■^'  deiinite  by  resorting 
to  the  record  hi  another  ease,  but  in  which  the  time  of  comminicement  of  the  sen- 
tence was  changed  by  an  occurrence  haiipenhig  in  the  other  ca.se  after  the  sen- 
tence had  heen  pronounced. 

It  is  further  obji'cted  in  the  case  before  us,  that  the  subsequent  sentences  do  not 
refer  to  any  other  particnhn*  sentence,  and  are  thus  not  only  indefinite  themselves 
but  do  not  iioiiit  to  any  certain  means  by  which  they  may  be  made  definite,  or  by 
which  the  time  of  the  eoiiimeneement  of  tJie  impn'sonnient  can  be  ascrtained. 
We  have  not  found  any  case  in  which  the  sentx'nce  was  ui  the  genend  language 
used  in  this  case,  to  wit:  "Said  term  to  coninience  at  the  expiration  of  previous 
sentences."  In  the  state  of  Xew  York  it  is  provided  by  statute,  that  hi  case  of 
two  or  more  convictions  before  sentence  on  either,  the  term  of  iniiirisoiiment  upon 
tJie  -eeond  or  subseiinent  conviction  shall  commence'  at  th(>  termination  of  the  pi-e- 
vious  term  of  iiiiprisonmiMit.  2  Hev.  Stat.  N.  Y.,  700.  Hi  regard  to  this  provis- 
ion, tin;  revisers  say  it  is  "generally  declared  hi  the  sentt'iice,  1  ait  as  it  maybe 
omitted,  it  is  deemed  useful  to  [iiMvide  for  it  by  law."  It  would  seem  that  under 
tiiis  sfatufi',  in  that  slate,  if,  in  the  case  of  two  or  more  convictions,  the  sentence 
should  bt'  ill  ti  ■.nis  simply  for  a  specified  time  of  imprisonment,  saying notliing as 
to  the  time  of  its  commencement  m-  as  to  any  former  conviction,  the  term  of  tho 
secund  imprisonment  wouhl  commence  at  tiic  ti  r.nination  of  tht!  first.  The  elt'ect 
(>t  this  is  that  under  a  eiimmitment  on  .siicli  a  second  judgment  tho  oilicer  would 
justify  the  imprisonment  of  the  defeiid;uit  liy  showing  tliat  the'  term  of  imprison- 
ment did  not  commence  at  the  date  of  till  .judgnii  nt  or  coimiiitmcnt,  ui  conse- 
iHit-nf'  iif  U;e  existenci'  of  .-k  iirior  jmlgment,  but  which  was  not  mentioned  in  the 
second.  We  h«vt>  no  statute  of  exactly  the  same  iniixiH  in  our  state,  but  we  may 
deduce  Uie  infer  lice  fmiu  the  enactment  of  mhIi  a  stadde  in  New  York,  iiiiou 
the  riMSMnmendation  ot  a  eommissioii  of  eminent  luul  experienced  jurists,  that  it 
is  nut  ,ia  aniniialy  in  crimiu.il  pl^^•eedill^;•s  that  the  tim-' of  comineneenient  of  a 
trnn  of  iniprisiiiini«'nt  sliouhi  .''ix'iid  upon  thi>  existeiv"  i>f  uMier  jnihrment.s  not 
-IMvitied,  and  to  U'  a,sci'rtaineil  only  bv  referring  to  the  records  of  the  court.  If  a, 
julgiiii'iit  is  valid,  as  in  the  civsi>  of  Ht'-urn  r.  ('oiiiiinniHrdlth,  above  cited,  which 
ivqiiiri  •  an  exiunination  of  the  reconls  .  f  the  court  in  anotli«f  speciHed  case  tofi.^ 
the  eomineiieeiiient  <-i  the  t«nu  of  imprisouiueiit,  we  (an  see  no  reat,on  why  a 
judgment  shoiud  not !«   vahd  m  wLijeh  the  eojiimencemont  of  tho  t<'rm  of  iiiii>ris« 


t. 
-t'. 


650 


AMEIUCAN  CRIMINAL  KErORTS. 


I'M 


oninont  is  to  1)0  fixoil  liy  iiscertaiiiiiit?  ]>y  rcfi'iviico  to  tlio  rocordsof  tlit;  (■oini  tlio 
tcnniimtiou  of  the  tonus  of  iKiprisoimii'iit  of  iiiiy  prior  st'iitenci's  tluil  uiiiy  luivo 
been  imiioMcd  upon  the  siinie  defcniliint. 

We  do  not  think  thi'  (jucHtion  in  iitl'ected  by  tli((  cireiinihtance  thiit  tlie  scntrnci'j 
in  this  ('iu:e  were  prononni'ed  l>y  u  court  eri'iited  by  .statute,  iind  of  iiniited  and  in- 
ferior jin'isd  let  ion.  The  utiitute  erciitin^c  tlie  court  docs  not,  we  Ijelieve,  pri'SLTiho 
wliat  shall  Ik'  the  form  of  its  judynn'uts  in  this  jiarticular.  Tlie  court  may  niiil'  r 
its  jnd^'iuents  in  eases  within  its  jurisdiction  in  the  usual  form  of  jud;,'m('iits  of 
criminal  coiu'ts  under  similar  circumstances. 

The  case  is  not  clear  of  embarrassment,  but  we  think  the  judyment  may  ho 
sustained  under  the  settled  i)ractice  in  analogous  cases. 

Tlie  prisoner  umst,  theri'fore,  be  remanded. 

In  Miller  r.  Alltii,  11  Ind.,  '-Wt,  it  appeared  tliat  Allen  had  been  .sentence.!  cm 
tbc  12th  of  XoviMuber,  IS.JtJ,  on  two  several  charges,  to  two  year.s  imprisoanient 
on  each,  and  that  the  second  term  of  impiisoimient  .should  commence  at  the  e.\- 
piration  of  tla;  first.  Allen  liaviuK  servt'd  two  years  was  discharyed  on /(((//(((.v 
<'0^/H/,s',  and  the  order  discharyiny  him  was  tak''n  by  the  warden  of  the  pn.,ou 
(ayainst  whom  the  wnt  of  hitbeiin  curjnis  ran)  by  appeal  to  tin.'  supreme  court. 
The  court  say: 

*'  We  are  of  opinion  that  the  order  dischargiuy  the  petitioner  wa.s  coitccI. 

"  In  the  absence  of  any  statutory  provision  authorizing  it  to  be  done,  thecoiirt.-i 
have  no  authority  to  order  a  term  of  imprisonment  in  the  penitentiary  to  ciiui- 
mence  at  a  future  perioil  of  time;  ;uid  the  order  to  that  etVect  may  lit-  regardid  us 
a  nullity.  The  judgment  would  Uien  titand  as  an  ordinary  judgment,  to  lu;  car- 
ried into  eilect  a.s  in  other  ea.ses. 

"In  the  revii^ion  of  l.Sl.">,  there  was  a  provision,  that  when  any  person  iscuu- 
victod  of  two  or  mor(,'  otFejises  at  the  same  term  of  any  court,  the  imprisDiniient  to 
which  such  jiei-son  shall  be  senb-nci'd on  any  si'cond  or  subs<'(juent  conviction,  shall 
commence  at  the  expiration  of  tlu!  i)receding  term  of  his  or  her  imprisoiunent. 
Kev.  Stat.,  1H1;>,  p.  907,  S  7-.     Ihit  there  is  no  sujh  provision  in  the  code  of  \<\2. 

" Till! ea.se  resolves  it«elf  into  this:  Tlio  ])etitioner  Wius  sentenced  U)  imprisonment 
in  the  state  prison  for  two  yeaj'.s,  on  C!u;Ii  of  several  iiidictmentw.  lie  has  ken 
two  years  in  tin;  state  jirison,  and  while  hi>  has  serv(.'d  out  the  time  fixed  liy  thi; 
one  sentence,  he  has  undergone  the  full  penidty  inflicted  by  tiie  other.  Tiiere  Ic- 
ing no  statute  in  force  providing  tJuit  one  t*'nu  of  imprisonment  shall  conunente 
at  tin;  exi»iration  of  anotJier,  we  are  of  opinion  Uiat  botli  terms  commence  and  run 
concurrently. 

"  We  have  been  furnished  with  no  authority  on  Uio  question  involved,  and  in  tlio 
absence  of  authority  to  the  contniry,  it  seems  to  us  that  the  discharge  of  the  peti- 
tionifr  was  correct  for  tlie  reiusons  above  indicate<l. 

"IVrCuuiA.M:    The  onV'r  miwlc  below  is  aflirmed  witli  costs." 

Jawc.s  r.  W'diil,  2  Mete.  (Ky.),  'J71,  was  an  action  of  false  imprisonment 
brought  by  James  agaiii.st  Ward,  the  keeiier  of  the  state  penitentiary.  It  ap- 
peared that  .Tames  lia<I  been  convicted,  at  tlie  same  term,  of  two  separate  felonies, 
and  his  ))unisliment  assessed  by  tin!  jury  in  each  axse  at  five  years  imiu-isonment. 
The  judgment  wa«  in  these  words: 

"  It  is  considered  l)y  the  court  that  the  prisoner  bo  confined  iji  the  ja.Ll  and  pen- 
itentiary iiiiuse  of  tlii-s  conimonweiUth  to  hard  laljor,  for  tlie  sjnirf  o/Jhr  ijinrn  on 
each  unlictmvnt.'"    The  action  was  for  contliming  tlie  iinpi-iaonment  beyond  five 


of  till.'  conH  tlio 
tluit,  limy  luivu 

lilt  till'  sciitrnci'3 

f  liiiiitetl  iiiul  ill. 
iclirvi',  iircsmlifi 
■oiii-t  iiiiiy  iviidrr 
of  jiul;,'iiiciits  of 

iilyiiii'iit  iiiiiy  )jo 


11  scntrnci'd  011 
r.s  iiiii'risdniiii'iit 
H'lici-  jit  tlic  ex- 

lill'gcd  (111  //,(/;,„,,. 

Icn  of  till'  iirinou 
(.'  Hupi-cnic  I'oiirt. 

rt'iiH  turnrl. 
;  iloiif,  Uiucuuils 
ili'iitiiiry  Ui  ciini- 
ly  lii'iv^riirdi'iliH 
,''iiiciit,  to  l'(.'  lar- 

ny  i»('rM;ii  is  cim- 
inilinsdiiniiiit  to 
t  conviction,  sliiiU 
iinprisoniiiciit. 

till'  C'Olll'  of  1>-.")L>, 

I  toiiiiprisoiiinrnt 
t«.  Ill'  liiis  IjLin 
iino  fixed  liy  ll;i; 
otlicr.  'J'iicn'  l:i'- 
slijill  ('Oiiuni'iuo 
niiiioiico  and  run 

■olvi'd,  iiiid  in  tlie 
iiryo  of  till.'  jirti- 


i!  miprisoiHiii'iit 
tontiiiry.  Rii])- 
f'panifc  felonies, 
s  iniprisonnieiit. 

lit'jii.Ll  and  jtPii- 
'  o/jii'i-  yciirs  on 
lent  It-yond  (ivo 


PRINCE  V.  STATE. 


551 


ypnrs.  Tlic  court,  after  examining  the  English  caaa  which  luid  been  citoil  {Hex 
r.  Wilkes,  4  Hurr.,  '.yiT)),  anil  pointing  out  that  this  ca.  0  wa.s  not  in  point,  Ix- 
uiusc  the  nggiegate  inipriHonnient  iiiipoac'd  in  tiiat  case  did  not  exceed  what  tho 
court  hail  ix)wer  to  impose  on  one  of  the  con\'ictioiis  singly,  decide  that  under  the 
judgment,  there  was  no  authority  to  iiniiri.son  the  plaiiititl"  for  more  than  five  years. 
The  court  say:  "  In  this  case,  the  extent  of  tlu.'conlinement  had  to  be  assessed 
liy  the  jury,  within  tlie  periods  in-escribed  by  law  as  the  punishment  for  the  of- 
fense, and  the  fourt  could  only  iviv'  I'lijudgment  in  coiifonnity  with  the  verdict. 
The  Htjitute  regulating  the  punishiuent  of  otfensi's  by  confiiieiuent  in  the  ptniten- 
tiiu-y  evidently  conteuiplat4'<l  that  the  confini'ment  should  conmieiici!  imnieiU- 
ately  after  the  juiigiuent,  rtiid  the  coiui  h.iul  no  power,  prior  to  the  lati'  ehange  m 
tJie  law,  to  postpone  its  conimenceuuuit  until  the  expiration  of  a  previous  period 
of  confinement.  Where  a  person  was  convict<'d  a  second  time  of  a  felony,  tho 
pimishnient  of  which  wa.s  conluiement  in  the  i)eiiitentiiiry,  the  court  had  tiie  jiower 
to  sentence  luiu  to  be  conlined  for  double  tlii'  time  of  the  fhst  conviition.  Judg- 
ment, hi  siiili  cases,  could  not,  however,  be  given  fiu-  tlio  more  usual  pi'iialty,  mi- 
jcss  the  fa<'t  of  the  former  conviction  was  found  by  the  jurj'.  and  ui  such  cases, 
tiie  time  of  coufinemont  was  merely  prolonged,  but  its  coiiimi'ijceiiient  wius  not 
jH)sti)0)ied  imtil  a  future  jieriod. 

"  What^'vi'r,  tlierefore,  may  have  been  the  intention  of  the  coiut  hi  reiuleiing  a 
judgment  that  th(!  prist)iier  should  be  confined  for  the  space  of  five  years  uiwu 
eiich  huUctiiient,  the  legal  efh.'ct  of  the  judgment  is,  that  he  shall  be  coiidned  on- 
ly for  five  years;  that  such  confmement  sludl  be  upon  eiu'h  uidictment,  luid  that 
lioth  t<'rms  of  five  yeai-s  shall  commence  and  terminate  at  the  sami.'  jieriods. 
*  *  *  As  there  was  no  statute  in  force  in  this  state,  at  the  time  the  judgment 
against  the  prisoner  wa.s  rendered,  iiroviding  that,  in  such  casi-s,  one  term  of  im- 
jirisonment  should  c()mmenc<;  at  the  exitiration  of  the  other,  the  judgment  must 
be  constnied  as  sentencing  tlie  priaoiKU'  to  five  years'  imprisonment  only,  and 
having  ser\-ed  five  years  in  the'  penitentiary,  hi;  has  luidergone  the  iiuni.'<hmeiit  to 
which  he  wius  sentenced,  both  the  terms  having  commenced  and  ended  sinuilta- 
ncously," 

()u  tho  whole,  the  queKtJon  of  the  power  of  the  courts  to  iiupos(>  cumulative 
senfeniies  on  sui'ceijsive  convictions  rests  in  doubt,  on  American  autliority.  A 
iiumlier  of  the  iitate  legislatures  have  authorized  tJiein  by  statut/*.  Such  is  tho 
ca.se  ill  New  York,  in  Kentucky,  in  Missouri,  and  some  other  states.  'Hie  fact 
of  the  pa.vsing  of  sueli  a  statute  would  be  some  uichcation  of  a  legislative  judg- 
ment that  without  the  statute,  tho  power  did  not  exist.  It  seems  to  be  well  set- 
tled m  Kngland  that  the  power  to  jiass  cumulative  sentences  exist.s  at  coiiimou 
law.  In  some  of  the  states  it  is  held  that  there  are  no  common  law  criiiicp,  nor 
is  there  iuiy  conmion  law  power  of  administering  criminal  justice;  f  bat  all  the 
power  the  courts  have  ui  criniinid  matters  is  statutory,  and  the  common  law  c, 
only  be  resorted  to  as  atlbrding  analogies,  light  in  interpret iition  of  words,  stat- 
utes, v\c.,  and  lui  iiiithoritv,  periiaps,  hi  matters  of  proiM-duri'.  In  other  statos, 
and  aecordiiig  to  Air.  Hisbop,  in  it  majority  of  the  sfntes,  it  Ls  hehl  that  the  com- 
mon law  evl.--ts  a.s  a  source  of  power  and  jurisdiction  hi  the  admin ist ration  of 
ciinihiiJ  justice,  luid  that  what  may  be  punished  as  a  crime  at  common  law,  may 
1h!  punished  tliere  to  the  same  ext^-nt,  md(>ss  the  law  lia.s  been  clianged  by  stat- 
iiti'.     In  tliot-e  stat(«  where  it  is  held  tJiat  the  common  law  is  not  in  force  for  tJio 

be  held  that  the  iiower  of  inflict- 


I 


puqxiso 

ing  cumulativ 


of  lainishing  crime,  it  woul 


•iUly  ■ 


ese 


iitencos  does  not  exist  except  where  coiifeiTcd  liy  statute.    There 


552 


AMERICAN  CRIMINAL  REPORTS. 


is  another  miittor  in  this  connection  which  ih  worthy  of  oonsidi'rntJon.  In  most, 
it'  not  ill  ail  of  tlio  Ktat4>w,  it  is  )>:un(li'(l  by  Htatut«i  that  if  a  iirisoncr  is  (•onviit<<| 
of  tiu'L'e  or  nioro  hircenies,  or  tiiree  or  more  aet«  of  receinn;;  stolen  noods,  at  the 
wamo  term  of  court,  ho  shuil  be  punished  l)y  uniiriHonnient  for  t^'ii  or  tifi-'cu  yeiir.;, 
and  in  some  cases,  ju'riiaps  niori!.  Now  if  there  exists,  indeiK'ndentiy  of  sndia 
ntatute,  a  power  in  ilie  court  to  imiwso  cumulative  sentences,  tin'  statute  is  un- 
necessary, a-s  til':  cunudative  sentonces  wliich  mij^ht  be  iinfiosed  would  enuid,  and 
in  many  cii.»'  s  exceed,  the  a.K'i^aavated  pmiishnient  allowed  by  the  statute.  'J'lm 
provisidD  ior  this  iif;;ri'avat<Hl  sentonce  is  really  and  in  eilect  a  provision  f(*cunai- 
lative  senti  iices,  in  these  specified  cases,  (hi  the  whole,  it  woidd  wnnn  to  bo  tho 
b'iter  doilritie  tliiit  there  is  nojiower  to  pass  cumiUative  senU'iices  in  the  absence 
of  a  special  st^dutory  authority,  allJiou^'li  tlie  yreat  autliority  of  Mr.  Hishop  sup- 
ports tlio  opp)site  opiiuon. 


r  ''■  V]  I 


I       i 


I,      ' 


ifh 


(:«  Mich.,  296.) 

PiucTKi::    Siisjii'iKkil  sciitciicc  —  Sctilviire  hi/  a  jwJijc  who  dUJ  not  try  thf  cause. 

Where  up('in  a  plea  of  guilty  to  a  eliiu^'e  of  malicious  uyury  to  a  dwelliii),',  sen- 
tt>nt;'  has  been  susiwiuLmI  until  the  iiexttenu,  ajid  thi' jirisoner  allowed  toj,'0 
on  Ills  own  n'co^riii/.iuice  in  a  merely  noniLual  sum,  and  the  subseiiueiit  tenu 
ha.-!  I'Mf-sed  witJiout  any  fuitlier  steps  bi'lni^r  taken,  it  is  not  cuinpetfiit  for 
nnotlier  .judyi^  holdinj,'  the  court  temiionirily  to  impose  a  severe  sent<'iico 
upon  the  respondent;  such  iutioii  is  to  lie  consideretl  not  nieri'ly  iussiipplyuii,' 
till'  triiiJ  jud^'e's  omissions,  but  iw  practically  overrulbi^,'  his  decision. 

Euijou  UiVdit  Bni'en,  Circuit. 

IC.  Srott  ./jtihe,  fur  ])liiiiiti(r  in  error,  (!ite<l  Coiiip.  L.,  J;,^  4051, 
7097;  L^O  Jfow.  Pr.,  J  IS;  L>0  Wis.,  til;  1  Cliitty  Cr.  I..,  OOtJ-O, 
7U1-1;  2  Hale  1'.  C,  404-5. 

Andrnn  J.  Siiilf/i,  Attorney  (Jeneral,  for  tlie  ])e()ple. 

CvMi'iiKM,,  J.  Weiivcr,  on  tlie  Stli  day  of  July,  IS74,  pleaded 
iruiltv  to  a  cliaroc  of  malicious  injury  to  a  d\vellin<^  The  case 
Mas  pending  in  the  circuit  court  for  the  county  of  Van  IJureii, 
and  the  ]dea  wis  put  in  before  the  Hon.  J.  AV.  Stonk,  circuit 
iudo;e.  On  the  same  day  Judi,'e  Stomo  siispended  sentence  until 
the  iiri^t  day  of  the  ne.xt  term,  which  was  the  ilrst  ^[onday  of 
October,  IS74,  the  resi)ondent  bein<^  allowed  to  give  bis  own 
recognizance  to  appear  at  that  day,  in  tbe  sum  of  one  hundred 
dollars.  The  sentence -'as  not  further  siispended,  nor  tbe  recog- 
nizance forfeited,  and  defendant  was  not  called  up  for  sentence 
at  tbe  return  term,  but  continued  at  liberty. 


tJon.  In  most, 
wr  is  coiivitUxl 
11  Ki><>'i.S  at  tlio 
['r(if1<'('u  yi'iuii, 
'iilly  of  Mitliii 
.statute  is  uil- 

.-K(tiit.-.    Thu 
i.-iioii  fn-funiu- 

SCCIll  to  l)(!  (Ill) 

in  till'  iiI)S('iH« 
Uislioi)  3up- 


il  tnjthf  cause. 

L  <l\V('llil|;r,  scn- 

r  iillowcd  toj,'o 
iil)sc(iu(Mit  U'nw 
\  I'umiM'tciit  for 
si'viTf!  scnh'iR'o 
I'ly  iussnpplyuit,' 
k'cision. 


.  L.,  $;H!»51, 
1-.  I..,  (i*JO-l>, 

)le. 

w4,  ple.'uled 
.     TIio  case 

Villi    I'lllTIl, 

om;,  CM'rciiif, 
iteiice  until 
]\r()ii(lny  of 
vii  his  own 
le  liuii<liv<l 
I"  the  rocoir- 
or  sentence 


WEAVER  t>.  PEOrLE. 


553 


On  the  25th  day  of  Octoher,  1S75,  Jnd^'o  Tk.nnant,  a  ju(li,'o  of 
another  circuit  sitting  teuipora-ily,  sentenced  AVeavei'  to  two 
years  and  .six  inontlis  iniprisoninent  in  the  state  prison.  On  this, 
crr(»r  is  In-ouglit. 

It  is  !i(»t  necessary  in  this  case  to  discuss  the  power  of  a  difVer- 
ciit  judge  to  give  sentence  wliere  it  has  been  omitted,  and  where 
it  does  not  aj)pear  that  such  omission  was  designed  to  interfere 
with  jtunishment.  There  has  been  some  dispute  as  to  the  best 
course  to  pursue  under  sncli  circumstances.  Lord  Ham:,  not 
C(>nsi(UM'ing  the  abstract  (question,  saiil  it  was  not  liis  custom  to 
give  sucli  sentences  in  cases  of  felony.  l>ut>  generally  the  «[UC3- 
tion  seems  to  become  important  in  view  of  some  action  or  ex- 
jiression  of  tlie  trial  judge  indicating  Ids  sentiments.  It  is  said 
with  much  force,  that  inasmuch  as  there  can  be  uo  sentence  witli- 
out  the  joint  belief  of  the  jury  in  tlie  prisoner's  gnilt,  and  of  the 
judge  in  the  deserts  of  the  otH'iider,  where  he  has  any  discretion 
to  exercise,  tlie  views  of  the  judge  are  to  be  respected. 

In  the  ])resent  case  there  was  no  fixed  i)enaUy.  It  might  bo 
imprisonment  in  the  state  prison,  or  it  might  be  a  short  impris- 
onment in  the  county  jail,  or  a  line  not  exceeding  live  hundred  dol- 
lars, but  with  no  minimum  amount  required  to  be  imposed.  lu 
other  words,  it  was  recognized  by  the  legislature  that  sucli  ofl'enses 
mi'dit  be  of  triflinij  eni>rmiiv,  and  not  worthvof  serious  notice. 

Sentences  may  be  susjieuded  for  various  jmrposes.  It  maybe 
for  the  purpose  of  allowing  steps  to  be  taken  for  a  new  trial,  or 
other  relief,  or  it  may  be  with  a  view  of  letting  the  otf'ender  go 
without  punishment.  The  release  of  a  defendant  on  his  own  re- 
cognizance and  without  sureties,  in  a  merely  nominal  amount, 
signifies  usually  the  latter  ])urpose.  It  at  least  is  a  ])laiii  asser- 
ti(ni  of  the  judge  that  he  did  not  regard  the  offense  as  one  that 
should  receive  a  serious  punishment.  The  failure  to  take  steps 
during  the  October  term  of  1874  was  a  practical  abandonment 
of  the  prosecution,  and  corroborates  the  oi)iuion  that  such  must 
have  been  understood  as  the  object  of  the  suspension,  aiul  as  the 
record  stands,  it  is  fairly  to  be  inferred  it  was  intentional.  To 
sentence  a  prisoner  to  tlie  penitentiary  under  such  circumstances, 
and  when  the  trial  judge  has  distinctly  said  he  ought  not  to  be 
so  sentenced,  is  not  supplying  his  omissions,  and  the  sentence 
was  unauthorized,  and  the  judgment  must  be  reversed,  and  the 
prisoner  discharged. 

The  other  justices  concurred. 


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654  AMERICAN  CRIMINAL  REPORTS. 

State  vs.  Gray. 

(37  N.  J.,  368.) 
riiACTicE:    Erroneous  sentence. 

Where  a  prisoner,  who  is  confined  under  an  illegal  sentence,  is  brought  before 
the  couii  on  habeas  corjws,  he  must  be  discharged,  and  the  court  has  no 
power  to  coiTCct  the  sentence  or  to  remand  the  prisoner  to  the  trial  couit  to 
be  sentenced  afresh. 

On  habeas  corpus. 

Argued  at  November  term,  1874,  before  Justices  Y.vs  Svckkl 
and  AVoonnuLL. 

Tlie  defendant  was  convicted  of  adultery  in  the  special  sessions 
of  Eso-^x  county,  and  sentenced  on  the  4th  of  September,  1S74, 
to  imprisonment  at  hard  labor,  in  the  state  prison,  for  the  term 
of  six  months.  He  was  brought  by  habeas  corpus  before  tliis 
court,  and  motion  made  for  his  discharge  from  custody,  because 
tlie  judgment  was  illegal. 

S.  Kal'tsch,  for  the  defendant. 

Yan  SycKKL,  J.  Section  IG  of  the  act  for  the  pu.iishment  of 
crimes  (Nix.  Dig.,  lOo)  provides  that  every  person  convicted  of 
adultery  shall  be  punished  by  fine  not  exceeding  $100,  or  by  im- 
prisonment not  exceeding  the  term  of  six  months.  In  every 
section  of  this  act,  prior  to  the  IGth,  the  crime  denounced  is  de- 
clared to  be  punishable  by  imprisonment  at  hard  labor. 

The  omission  of  these  words  in  the  16th,  20th  and  21st  sec- 
tions, while  they  are  found  in  the  sections  which  precede  and 
follow  them,  could  not  have  been  unintentional.  Adultery  was 
not  indictable  at  common  law,  being  punishable  only  in  tlic 
ecclesiastical  courts,  and  therefore  the  legality  of  the  judgment 
by  which  the  defendant  was  incarcerated  in  this  case  must  rest 
wholly  on  the  provisions  of  the  10th  section  of  our  act  concern- 
ing crimes.  That  section  authorizes  imprisonment  only  and  the 
words  "hard  labor"  cajinot  be  added  to  it  without  enlarging 
the  language  of  the  statute,  and  increasing  the  measure  and 
Beverity  of  the  punishment.  The  act  for  the  government  and 
regulation  of  the  state  prison  (Nix.  Dig.,  901),  which  is  hijtai'l 
materia,  provides  that  every  person  sentenced  to  hard  labor  and 
imprisonment  under  the  laws  of  this  state  for  any  time  not  lees 


jrought  before 
court  lias  no 
trial  comi  to 


XS  SVCKKL 

Mill  sessions 
iiiber,  IS 74, 
or  tlie  term 
before  tliis 
iy,  because 


lisliment  of 
iorivicted  of 
),  or  by  im- 
Iri  eveiy 
meed  is  de- 
r. 

d  21st  scc- 

irecede  and 

lultery  M-as 

idy  in  tlic 

!  judgment 

!  must  rest 

;t  concern- 

ly  and  tlio 

enlar:;injr 

asure  and 

iment  and 

is  uxjxin 

labor  and 

le  uot  lees 


STATE  V.  GRAY. 

than  six  months,  shall  be  delivered  to  the  keeper  of  tho  state 
prison,  but  no  warrant  is  given  for  the  confinement  therein  of 
any  one  who  may  not  be  sentenced  to  imprisonment  at  hard 
labor. 

In  my  opinion,  the  only  sentence  which  can  be  imposed  under 
the  16th  section  is  the  specified  fine  or  imprisonment,  and  that 
under  such  judgment  the  defendant  could  not  lawfully  be  com- 
mitted to  the  state  prison. 

The  question  which  chiefly  occupied  the  consideration  of  the 
court  in  this  case  is,  whether  we  could  pronounce  the  proper 
judgment  here,  or  send  the  prisoner  to  the  court  below  to  be  re- 
sentenced according  to  law. 

In  litx  V.  Elliif,  5  Barn.  «&  Cress.,  395,  the  court  below  ad- 
judged that  the  defendant  be  transi)orted  for  fourteen  years.  In 
error  to  the  King's  Bench,  Lord  Tkntkrdkn  held  that  seven 
}  ears'  transportation  was  the  extreme  limit  of  the  punishment, 
and  that  the  judgment  being  erroneous,  it  could  not  be  sent 
back  to  be  amended.  In  this  case  it  was  suggested  that  the 
judgment  of  the  inferior  court  might  be  regarded  as  a  good  judg- 
ment for  transportation  for  seven  years,  treating  it  as  void  as  to 
the  excess,  but  Lord  Tkxtekdex,  after  taking  time  for  considera- 
tion, decided  this  point  against  the  crown. 

In  the  later  case  of  The  King  v.  Bourne^  7  Ad.  &  Ellis,  68, 
Lord  Wknman,  Justices  Littlkdale  and  Patterson  concurring, 
refused,  when  an  improper  judgment  was  given  below,  to  pro- 
nounce such  judgment  as  should  have  been  given,  or  to  remit 
the  case  to  the  court  below  for  judgment,  on  the  ground  that 
they  had  no  such  power.  This  was  undoubtedly  the  English 
rule,  until  otherwise  "egulated  by  statute,  and  it  has  been  gener- 
ally recognized  as  authority  in  this  country. 

In  Shej)/ierd  v.  Comniomcealth,  2  Mete,  419,  where  the  judg- 
ment below  was  erroneous.  Chief  Ju'-'-ice  Shaw  cited  the  Eng- 
lish cases,  and  held  that  he  could  not  render  a  new  judgment,  or 
send  the  case  to  the  court  below  for  judgment. 

The  judgment  was,  therefore,  simply  reversed,  and  the  pris- 
oner discharged,  as  had  been  done  in  the  English  cases.  Stevons 
V.  Commonwealth,  4  Mete,  360;  Christian  v.  Commomooalth, 
6  id.,  530. 

To  remedy  this  defect  a  statute  was  passed  in  Massachussetts, 
in  1851,  authorizing  the  superior  court  either  to  pass  judgment 


!!f^^ 


%'i 


■PW 


W'^ 


m 


556 


AMERICAN  CRIMIXAL  REPORTS. 


!.i: 


in  due  form,  or  to  remand  the  ca^e  for  that  purpose  to  the  in- 
ferior jurisdiction.     Jacijiiins  V.  Commonwealth,  9  Cush..  279. 

In  Bameh  v.  CommouvenUh,  7  l*arr.,  375,  the  Pennsylvania 
court  admitted  the  rule  of  the  English  cases  to  be  as  I  have 
stated  it,  and  put  its  power,  to  modify  the  judgment  of  the  court 
below,  upon  their  statute  of  June  10, 1830. 

In  TJie  People  v.  Taylor,  3  Denio,  91,  Chief  Justice  Ijiu»n. 
SOX,  upun  the  authority  of  the  Knglish  and  ]\[assaehu setts  cases, 
declared  that  if  a  wrong  judgment  be  given  against  a  defendant, 
which  is  reversed  on  error,  the  court  of  review  can  neither  give 
a  new  judgment  against  him,  nor  send  the  case  back  to  the  court 
below  for  a  proper  judgment. 

In  Shepherd  v.  The  People,  25  X.  Y.,  400,  and  Ratzl'ij  v.  The 
People,  29  id.,  132,  the  court  of  appeals  cited  the  case  in  Dunio 
with  approbation,  and  held  that  it  was  oidy  by  force  of  their 
subsequent  statute,  passed  in  1830,  that  the  rule  was  changed. 

Many  other  cases  which  support  this  doctrine  are  referred  to 
by  Justice  Clii  fokd,  in  Ex  parte  Lange,  IS  "Wall.,  lS-1,  with  the 
remarks  "  that  they  were  decided  in  a])])ellate  tribunals,  and  in 
jurisdictions  where  there  was  no  legislative  act  conferring  any 
authority  to  impose  the  proper  sentence,  or  to  renuind  the  ])ris- 
oner  to  the  court  of  original  jurisdiction  for  that  purpose,  and,  of 
course  the  oidy  judgment  which  the  aj)pellatc  court  could  render 
was  that  of  reversal,  which  operated  to  discharge  the  prisoner.'' 

In  this  state  there  is  no  positive  law  regulating  this  subject, 
nor  has  this  question,  as  far  as  I  am  informed,  been  discussed  in 
our  courts,  and  I,  therefore,  would  feel  constrained  to  follow  the 
almost  unbroken  current  of  decision  by  judges  of  eminejit  ability, 
if  the  precise  point  determined  in  those  cases  was  now  under 
consideration. 

The  writ  of  haheas  corpus  in  this  case  does  not  bring  up  the 
record  of  the  proceedings  and  judgment  Inflow  for  review;  it 
operates  on  the  body  of  the  defendant,  and  raises  the  single  ques- 
tion, whether  he  is  legally  in  custody. 

This  court  may,  as  has  been  done  in  this  case,  award  a  certio- 
rari to  produce  the  record  for  its  inspection,  but  it  has  no  i)(»wcr 
to  reverse  the  judgment  of  the  inferior  jurisdiction ;  it  can  simply 
declare  that  by  virtue  of  the  sentence,  if  manifestly  illegal,  the 
defendant  cannot  be  longer  restrained  of  his  liberty.  The  court 
which  rendered  the  judgment  cannot  vacate  it,  or  render  a  new 


to  tlie  I'li- 
ish..  279. 
mgylvania 
as  I  have 
f  the  court 

ico  I'uox- 
■etts  cases, 
(.lefeiulaut, 
iitlior  i^ivo 
the  Court 

;^'y  V.  T/te 
i  in  Dunlo 

0  of  tlioir 
hauled, 
efcrred  to 
i,  Avitli  tlio 
lis,  aud  in 
'I'riui^  any 

tlie  ])ris- 
)se,  and,  of 
idd  render 
jn-isoner." 
lis  subject, 
scus^ed  in 
follow  tlio 
snt  ability, 
low  under 

ng  uj)  tlio 
review;  it 
ngle  ques- 

1  a  cet'tlo- 
no  ])ower 

an  simply 
llei,'al,  the 
The  court 
der  a  new 


■H: 


I  ;'  -    1 1 


STATE  f.  GRAY. 


judgment  after  tlie  term  at  which  it  was  pronounced  is  ended,  or 
the  judgment  is  executed,  and  the  punishment  partly  borne. 

The  judgment  subsisting,  but,  being  illegal  and  void,  it  is  no 
warrant  for  retaining  the  defendant  in  custody,  and  it  seems  clear 
that  no  nev>'  judgment  can  be  passed  in  this  court  or  the  court 
below. 

In  accordance  with  these  views,  the  defendant  was  discharged 
from  custt»dy  at  the  last  term  of  this  court. 

"WooDuuLL,  J.,  concurred. 

Note.  —  Of  late  yours,  the  question  lias  been  fi-equently  discussed  in  the  courts 
whether  a  person  confined  in  prison  under  sentence  of  imprisonment,  on  a  con- 
viction for  crime,  may  resort  to  a  wTit  of  hihms  vorinis  to  obtain  liis  liberty, 
whi.'re  it  nppears,  on  inspection  of  the  whole  record,  that,  the  court  which  imposed 
the  sentenct.',  exceeded  its  authority,  or  had  no  jiurisdiction  to  unpose  that  particu- 
lar sentence  in  tJiat  civse. 

In  Jaiuiary,  187-"),  application  was  made  to  the  supremo  court  of  the  state  of 
Jlidiijran  for  ii  writ  of  Jinlmis  cnypiis  on  Iwhalf  of  WilUam  T.  Undenvood.  Un- 
d.'nvood  was  then  confined  in  states  jirison  on  h  sentence  passed  by  the  recorder's 
court  of  Detroit,  under  a  statute  which  was  claimed  to  be  unconstitutional  and 
void.  The  court,  in  a  per  curiam  opniion.  hvld,  that  "  the  question  sought  to  be 
raised  would  necessarily  involve  a  renew  of  the  order  of  the  recorder's  court,  by 
vii-tue  of  which  the  prisoner  is  confmed;  and  that  habeas  corpa.s  is  not  the  proper 
remedy;  and  that  th(!  ciuestion  must  l)e  raised  by  writ  of  cn-or,  or  other  appropri- 
ate remedy.  Writ  denied."  This  is  all  there  is  of  the  opinion,  and  no  author- 
ities arc  cited  or  n^fen-ed  to.    Matter  of  Uiidvricooil,  ■'>0  Mich.,  r>02. 

In  the  celebratisl  Tweed  case,  in  June;,  187.">,  tlie  question  wius  elalwrately  ilis- 
cussed  by  tlie  court  of  appeals  of  New  York.  Tweed  was  sentenced  on  an  indict- 
ment, on  twelve  dirt't'rent  counts,  to  one  year's  imprisonment  and  $'2-j0  fine  on 
each  count,  in  addition  to  fines  imposed  on  other  counts  on  which  he  was  com-icted 
on  the  same  iiuUctment.  The  maximum  piuushment  fixed  by  law  for  the  oft'ence, 
of  which  r.  diilerent  one  was  charj,'ed  in  each  count  of  the  indictment,  was  one 
year's  imprisoiuiient  and  8"2o0  fine.  The  judgment  pro\ided  that  the  term  of 
imprisonment  on  (\ii'h  coiuit  should  beffin  on  tlu!  ti'miination  of  the  imprisonment 
iii!l>osed  on  the  next  precedinf;  count,  thus  niakijig  the  tenns  of  imprisonment 
cumulati've,  and  iif,'j,'reffating  twelve  years  from  tlie  datt?  of  the  judj^ment.  Tweed 
paid  one  line  of  •i>-">0,  and  'afti.'r  remauiing  iji  prison  one  year,  sueil  out  a  writ  of 
Jiiihnis  eorjiii/!  to  n.'fiain  his  liberty.  Two  questions  are  discussed  in  the  case. 
Fii-st,  whether  the  court  had  any  power  to  impose  cumulative  sentences  on  a  con- 
\ictian  on  a  nuniber  of  counts  for  misdemeanor  in  the  same  indictment;  and, 
secondly,  whether,  if  it  !)e  determined  the  court  had  no  power  to  impose  more 
than  the  maxinmni  sentence  allowed  by  law  on  a  conviction  on  one  count,  habeas 
corpus  is  a  jiroper  remedy.  The  court  fir'st  considered  the  question  as  to  whetlior 
the  writ  of  liaheas  rorpas  was  a  proper  remedy  on  a  sentence  of  imprisonment  in 
exci.'ss  of  the  authority  of  the  court,  .\fter  a  very  full  re\iew  of  the  authorities, 
tlie  court  considered  that  habeas  corjuis  was  a  proper  remedy,  concluding  their 
opijiion  on  that  poijit  in  these  words:  "  1  see  no  escape  fi'om  Hk'  conclusion  that 
the  jurisiliction  cf  the  court  of  oyer  and  terminer,  to  give  the  judgment  or  judg* 


^WT 


568 


AMERICAN  CRIMINAL  REPORTS. 


I  '\i-' 


ments  which  nppcnr  upon  the  record  rphimocl  to  this  court,  and  by  virtue  of 
which  the  reliitor  is  hold,  was  a  proper  subject  of  inquiiy  upon  the  return  of  the 
writ  of  habeas  corpus.  It  waa  the  only  fact  which  the  prisoner  conld  allefro;  for 
whatever  eirors  the  court  may  have  committed  prior  to  the  judfnnent,  if  the  coui-t 
had  power  to  make  the  judgment,  they  can  only  be  reviewed  by  wit  of  eiTor.  ~  i 
other  words,  upon  the  writ  of  habeas  cm-pus,  the  court  could  not  jro  behind  t.ie 
judffinent;  but,  upon  the  whole  record,  the  question  was  whether  the  judgment 
was  warranted  by  law,  and  within  the  jurisdiction  of  the  court. 

"  Tliis  conclusion,  as  to  the  jwtency  and  efficiency  of  the  writ  of  habeas  corpus  to 
test  the  jurisdiction  of  everj'  court  in  tiie  land,  assuminp  by  its  judprmeiits,  de- 
crees and  process  to  deprive  tlie  citizen  of  his  liberty,  and  wliich  is  entirely  con- 
sistent with  the  historj',  uses  and  sacredness  of  the  writ,  and  it.s  connection  with 
civil  liberty  and  free  government,  makes  it  necessary  to  consider  the  questions 
made  upon  the  record,  of  tlie  convictions  and  judjsjments  returned  to  us.  Our  ex- 
amination wU  be  confined  to  tiiat  record.  We  shall  not  assume  to  po  back  of  it 
for  any  purpose,  for  by  it  must  the  jurisdiction,  as  challenged,  be  tried.  Bearing; 
in  mind  the  distinction  between  judgments  merely  informal  or  erroneous,  and 
those  void  as  without  jurisdiction,  coram  nonjiidicc,  the  question  is,  had  the  court 
of  oyer  and  tenniner  the  power  to  pronounce  the  several  judgments,  and  inflict 
the  accunuilated  pimishmcnts,  upon  the  conviction  of  the  prisoner  of  the  oit'enses, 
AS  charged  in  the  single  indictment?  " 

On  tlie  other  V)rancJi  of  the  case,  the  court  reached  the  conchision  that  the  court 
had  no  power  to  impose  more  than  one  fine  of  $250  and  one  year's  imprisonment 
and  Tweed  was  accordingly  discharged.  Being  a  case  of  ver>'  great  public  intor- 
Cflt,  in  which  the  most  eminent  counsel  of  the  New  York  bar  was  engaged,  the 
Ijreatest  resoarch,  leaniing  and  ability  were  displayed  in  the  case.  All  the  author- 
ities will  be  foimd  collected  m  it.  A  fidl  report  of  the  case  will  be  found  in  60 
N.  Y.,  .WO. 

In  October,  lf<l'.i,  the  supreme  "<"  irt  of  the  United  States  passed  uixm  tliis 
question  in  /•>  parte.  Laiir/e,  \><  Wa.     103;  S.  €.,  2  (Jreen  Crim.  Bep.,  10.?. 

The  petitioner  Lange  Imd  licen  convicted  in  the  U.  S.  circiit  court  for  the  south- 
ern district  of  New  York  of  embezzling  certain  mail  bagf.  For  tliis  offense  tlie 
law  prescribes  impris'innient  for  not  more  than  one  year,  or  a  fine  of  not  more 
than  two  hundred  dollars,  or  less  than  ten.  The  judge  imposed  a  sentence  of  one 
year's  imprisonment  and  a  fine  of  two  hmidred  doUare.  Lange  paid  the  fine 
which  was  duly  paid  over  to  the  United  States  tre.xsury.  Five  days  aft<'r  tlie  dt- 
fcndant's  conunitment  under  the  first  judgment  he  was  brought  before  the  court 
and  an  order  entered  vacating  the  first  sentence,  and  the  defendajit  wnn  again 
sentenced  to  one  year's  imprisonment  from  that  date.  Lange  petitioned  the  su- 
premo court  for  writs  of  habeas  corpus  and  cetiiorari,  wliii  h  wore  idlowed.  The 
return  of  the  marshal  showed  that  he  held  Lange  in  custody  by  %nitue  of  tlie  lat- 
ter judgment.  The  main  question  discussed  by  the  court  is,  the  authority  of  the 
circuit  court  to  award  the  second  sentence,  and  it  wa.s  held  that  it  had  no  such  au- 
thority, and  tlio  sentence  was  illegal  and  void.  The  question  of  the  right  of  the 
supreme  court  to  examine  into  the  matter  on  habeas  corpus  was  dismissed  by  the 
court  in  these  words: 

"  The  authority  of  this  court  in  such  case,  under  the  constitution  of  the  United 
States  and  the  fourteenth  section  of  the  judiciary  act  of  11(^9,  to  issue  this  writ  and 
to  examine  the  proceedings  in  the  inferior  court  so  far  as  may  lie  necessary  to  as- 
certaiji  whether  the  court  has  exceeded  ite  authority,  is  no  longer  open  to  qucs- 


BRIESWICK  V.  MAYOR. 


559 


tion.  The  cases  cited  at  Uie  end  of  tiiis  paragraph,  will,  when  examined,  estab- 
lish this  proposition  m  far  tm  judicial  decision  can  establish  it.  United  States  v. 
Hamilton,  3  Doll.,  17;  BurfonVs  Case,  3  Cranch,  448;  Exjnnie  Bollman,  4  id., 
75;  Expanse  Watkins,  3  Pet.,  193;  S.  C,  7  Pet.,  5G8;  Ex  parte.  Metager,  5  How., 
307;  Ex  parte  Milligan,  4  Wall.,  2;  Ex  jxDie  McCardk,  6  id.,  318;  S.  C,  7  id., 
506;  Ex  parte  Yerger,  8  id.,  85. 

"  Disclaitnini^'  any  assertion  of  a  jontnil  power  of  rexnew  over  the  judgments  of 
the  inferior  courts  in  criminal  case; ,  by  the  use  of  the  writ  of  habeas  corpus,  or 
otherwise,  we  proceed  to  examine  the  record  of  the  case  in  tlie  circuit  couit,  and 
tJie  return  of  the  marshal,  in  whose  custody  the  prisoner  is  foimd,  to  ascertain 
whether  they  show  that  the  court  below  haii  (my  power  to  render  the  judgment 
by  which  the  prisoner  is  held." 


m 

i 

■  *  "■   '. .. 

1 

Brieswick  vs.  Mayou,  etc.,  of  Bhunswick. 
(51  Ga.,  639.) 

Practice:    Inqmsonment  in  default  of  fine  —  Constitutional  law. 

Power  U)  punish  by  fine  or  imprisonment  does  not  include  power  to  imprison  in 

default  of  payment  of  a  fine. 
A  statute  vididating  all  onlinances  of  a  city  held  obnoxious  to  a  constitutional 

provision  that  no  statute  should  embracf  more  than  one  subject  matter. 

Wakner,  J.  It  appears  from  tlie  record  and  bill  of  exceptions 
in  this  case,  that  Robert  Brieswick  and  Cyrus  Shelton,  two  boys 
under  fourteen  years  of  age,  were  imprisoned  in  the  guard-house 
of  the  city  of  Brunswick;  that  they  were  brought  before  the 
judge  of  the  superior  court  on  a  writ  of  haheas  corpit^,  on  the 
allegation  in  their  petition  therefor,  that  their  imprisonment 
wus  illegal.  The  court,  after  examining  into  the  cause  of  their 
capture  and  detention,  on  the  return  of  the  haheas  corpus^  dis- 
charged them  from  the  custody  of  the  officer  who  had  them  in 
charge.  Tiicy  were  again  arrested  and  imprisoned  in  the  guard- 
house of  said  city,  and  again  brought  before  the  judge  of  the 
superior  court  on  a  second  writ  of  haheas  corjms,  on  the  return 
of  which,  it  appeared  by  the  answer  of  the  guard-house  keeper, 
that  he  detained  them  in  custody  by  virtue  of  a  warrant  of  com- 
mitment issued  by  the  mayor  of  said  city,  dated  the  -Ith  of  June, 
1S73;  the  order  of  discharge  for  the  same  alleged  offense  being 
dated  23d  of  May,  1S73.  The  warrant  of  commitment  recited 
that  the  defendants  had  been  found  guilty  on  the  23d  day  of 
May,  1S73,  of  violating  an  ordinance  of  the  city  "  to  prevent  pei- 
6011S  from  indecently  exposing  themselves  or  others,"  and  sen- 


[ij 


660 


AMERICAN  CRIMINAL  REPORTS. 


tenced  to  pay  a  fine  of  $5.00,  or  in  default  thereof,  to  be  confined 
in  the  guard-liouse  ten  days;  and  each  having  failed  and  refused 
to  pay  said  line,  respectively;  and  whereas,  the  said  Shelton  and 
Brieswick  have  been  confined  by  you  in  said  guard-house  for  the 
Bpace  of  three  days;  these  are,  therefore,  to  coniniand  you  to  se- 
cure the  bodies  of  the  said  Shelton  and  IJrieswick,  and  keep 
them,  and  each  of  them,  in  the  guard-house  seven  days  from  the 
date  of  their  reception.  There  does  not  ap])ear  to  have  been  any 
warrant  issued  for  their  arrest,  founded  on  the  affidavit  of  any 
person,  but  timply  a  iu>tico  served  upon  them,  signed  by  the 
city  marshal,  ref[U! ring  them  to  appear  before  the  i)olice  court, 
stating  that  they  were  charged  with  the  oft'onse  of  "  bathing  at  a 
wharf  known  as  the  Cotton  Press."  On  hearing  the  secoiul  ha- 
beas  corjnis,  the  court  refused  to  discharge  them,  aiul  remanded 
them  to  be  imprisoned,  whereupon  the  defemlantg  excepted. 

In  view  of  the  facts  disclosed  by  the  record  in  this  case,  it  mav 
well  be  doubted  whether  the  two  boys  who  were  arrested  and 
imprisoned  were  not  dei)rivcd  of  their  liberty  witiiout  due  pro- 
cess of  law.  See  Code,  sections  471-4,  471.5,  4723,  4724,  4725. 
There  was  no  affidavit  made  by  any  person  charging  tliem  witli 
having  violated  any  ordinance  of  the  city  prior  tu  tlieir  arrest 
and  detention.  They  were  simply  notified  to  appear  before  the 
police  court  as  Ijeing  charged  with  "bathing  at  the  wharf  known 
as  the  Cotton  Press."  They  were  charged  with  and  imprisoned 
for  having  committed  the  ofl'ense  jointly,  whereas  the  ofi'onse 
was  not  joint,  but  several  as  to  each  one  of  them.  The  war- 
rant of  commitment  recites  that  they  were  found  guilty  of  vio- 
lating an  ordinance  of  the  city  "  to  prevent  persons  from  itule- 
cently  exposing  themselves. or  others."  The  iir^t  section  of  tlie 
ordinance  of  the  city,  number  fc'ghty-five,  prohihits  any  ])er»on 
from  wilfully  making  any  indecent  or  public  exposure  of  his  or 
her  ]>erson,  or  of  any  other  person.  The  seconrl  section  of  said 
ordinance  prohibits  any  person  from  swimming  or  bathing  in 
the  river  opposite  the  city,  at  any  place  below  south  of  the  mouth 
of  the  canal,  between  daylight  in  the  morning  atul  eight  o'clock 
in  the  evening,  except  in  bath  houses  or  in  bath  dresses.  Tlieso 
two  sections  recognize  two  distinct  offenses,  to  wit,  wilfully  mak- 
ing an  indecent  or  public  exposure  of  the  person,  swimming  or 
bathing  at  certain  described  points,  except  in  bath  houses  or  in 
bath  dresses.      For  which  oiieuse  were  the  boys  imprisoned? 


BRIESWICK  c.  MAYOR. 


501 


be  confined 

ukI  rofnscd 

Slielton  and 

use  fur  tlie 

1  you  to  se- 

,  iind  keep 

ys  from  the 

0  been  any 

IV it  of  any 

•ned  by  tlie 

)olice  court, 

jatliiut,'  at  a 

second  /xi- 

d  remanded 

:cepted. 

cu.se,  it  may 

rre»ted  and 

ut  due  pro- 

47i>4,  472',. 

:  tliem  with 

their  arrest 

r  before  the 

harf  known 

imprisoned 

the  offense 

Tlie  war- 

lilty  of  vio- 

from   inde- 

:5tion  of  the 

any  pei'son 

ire  of  his  or 

tion  of  said 

•  bathin;,'  in 

f  the  mouth 

ii^ht  o'clock 

ses.     These 

ilfully  nndv- 

rimmin;;  or 

liouses  or  in 

imprisoned? 


The  notice  states  that  they  were  charged  witli  the  offense  of 
♦' bathing  at  tlie  wharf  known  as  the  Cotton  Press."  The  maj- 
or's warrant  of  commitment  recites  that  they  were  found  guilty 
of  violating  the  ordinance  which  prohibited  an  indecent  exposure 
of  themselves.  The  mayor's  warrant  of  commitment  also  re- 
cites that  the  boys  had  been  found  guilty  of  that  offense,  and 
sentenced  to  i)ay  a  fine  of  §5.00,  or,  in  default  thereof,  to  be  con- 
fined in  the  guard-houe3  ten  days;  that  appears  to  have  been  the 
judgment  of  the  court,  but  the  mayor  further  recites  that  as 
they  had  been  confined  three  days  in  the  guard-house,  they  were 
to  be  imprisoned  only  seven  days.  Under  what  judgment  of 
any  court  did  the  nuiyor  derive  his  authority  to  imprison  the 
boys  for  seven  days?  The  judgment  of  the  court  under  which 
he  pretended  to  act  was  that  they  should  be  imprisoned  ten  days, 
and  that  was  the  only  judgment  under  which  he  had  any  pre- 
tense of  authority  to  imi)rison  them  at  all.  The  three  days'  im- 
prisonment, for  which  he  undertook  to  give  them  credit,  was 
declared  by  the  judge  of  the  superior  court  to  have  been  illegal. 

1.  But  we  place  our  judgment  in  this  case  on  the  ground  that 
the  imprisonment  of  the  boys  was  illegal,  because  the  police  court 
of  the  city  of  lirunswick  had  no  ])ower  or  authority  conferred 
upon  it  liy  its  charter  to  coerce  the  payment  of  the  fine  imposed 
by  imprisonment. 

Tiie  act  of  27th  August,  1872,  consolidating  and  amending  the 
several  acts  incorporating  the  city  of  Brunswick,  provides  by 
the  38th  section  thereof,  that  the  police  court  shall  have  cogni- 
zance  of  all  ott'enses  against  the  ordinances,  by-laws,  rules  and 
regulations  of  said  city,  and  the  laws  of  this  state  touching  said 
city,  with  power  to  infiict  the  proper  jjunishment  by  tines,  im- 
prisonment, labor,  or  other  penalty  prescribed  by  such  ordi- 
nances, by-laws,  rules  and  regulations,  from  time  to  time,  and  to 
enforce  the  same  by  mittimus,  directed  to  the  chief  marshal  of 
the  city,  or  any  lawful  constable  thereof,  or  to  the  keeper  of  the 
guard  house,  when  necessary.  The  police  court  of  the  city,  un- 
der its  charter,  had  the  power  and  authority  to  have  inflicted  pun 
ishment  l>y  imposing  the  fine  prescribed  by  the  ordinance  for  its 
violation,  but  did  not  have  the  power  and  authority  to  coerce  the 
payment  of  such  fine  by  the  imprisonment  of  the  party  or  par- 
ties on  whom  such  fine  was  imposed.  The  city  council  have  the 
power,  nnder  its  charter,  to  prescribe  the  punishment  for  a  vio- 
VuL.  I.-3G 


\.' 


5C2 


AMERICAN  CRIMINAL  REPORTS. 


lation  of  the  ordinances  of  tlie  city,  either  by  fine  or  hy  iuipi-is- 
onment.  "When  the  jmnishnient  inflicted  is  inipri.sonnient,  that 
is  the  jienalty  to  be  enforced.  When  the  penalty  is  a  iinc,  tliut 
itt  the  penalty  to  be  enforced  in  the  manner  provided  by  law;  but 
tlie  charter  does  not  confer  r.pon  the  city  conmril  of  J'.ruuswick 
the  power  and  authority  to  j)ass  an  ordinance  to  enforce  the  col- 
lection of  u  line  by  imprisoning  the  2>arty  who  fails  to  pay  it,  un- 
til  he  shall  do  so,  or  for  any  specified  number  of  days  until  he 
sliall  do  so.  The  city  council  have  the  power  and  authority  to 
pass  an  ordiiumce  inflicting  the  proper  punishment  by  iuipris- 
onment  for  a  violation  of  'Its  ordinances,  but  have  not  the  jH»wor 
and  authority,  under  its  charter,  to  pass  an  ordiiumce  to  enforce 
the  collection  of  a  fine  by  imprisonment,  or  to  imprison  any  per- 
son for  tlie  non-payment  of  a  fine  im])osed  on  him. 

2.  The  5Sth  section  of  the  act  does  not  helj)  the  matter.  TJy 
the  4th  section  of  the  3d  article,  paragraph  5  of  the  constitution 
of  18(!S,  it  is  declared:  "Nor  shall  any  law  or  ordinance  ])as>s 
which  refers  to  more  than  one  subject  matter,  or  contains  mutter 
diflerentfrom  what  is  expressed  in  the  title  thereof.''  The  onlv 
subject  matter  referred  to  iji  the  title  of  the  act  is,  "  to  consoli- 
date  and  amend  the  several  acts  incorjiorating  the  city  of  Bruns- 
wick, and  foi"  other  purpt)ses  therein  mentioned." 

The  other  subject  matter  contained  in  the  act  is  to  make  valid 
and  conflrm  "all  the  acts  and  ordinances  of  the  mayor  and  citv 
council  of  the  city  of  Brunswick,  heretofore  passed,  and  not  in 
conflict  with  the  constitution  of  the  state  of  Georgia  or  of  the 
United  States,''  whether  these  acts  and  ordinances  had  l)ceri  au- 
thorized by,  or  werc  in  conformity  with,  the  laws  of  this  state  or 
not.  The  5Sth  section  of  the  act,  it  will  be  ])erceived,  introducL's 
into  the  body  of  it  a  distinct  and  quite  comi)rehensive  subject 
matter,  embracitig  all  the  ordinances  of  the  city  which  had  there- 
tofore been  i)assed.  Did  the  general  assembly  understaiid  when 
the  act  to  consolidate  and  ameiul  the  .several  acts  itieorporating 
the  city  of  I'runswick  was  passed,  that  the  other  subject  matter 
embraced  in  it,  of  confirming  and  making  valid  all  the  acts  and 
ordinances  of  the  mayor  ajul  city  council  of  Ijrunswick,  was  also 
made  a  part  of  that  law?  Did  the  general  assembly  have  before 
it  these  ordinances  which  were  confirmed  and  made  valid  by  that 
act?  Did  it  know  and  understand  what  were  the  several  provis- 
ions of  these  ordinanceb?    It  was  just  such  legislation  as  this 


LARK  c.  STATE. 


503 


)!•  by  iinpi'isi- 
onnieiit,  that 
6  a  iiiii",  tliiit 
1  by  biw;  but 
f  Jlrunswic'k 
"orcc  the  cul- 
to  pay  it,  iin- 
ibiys  until  lie 
authority  to 
it  by  iuiiiris- 
not  the  ))o\ver 
ice  to  enforce 
rison  any  per- 

;  matter.  l>y 
i)  constitution 
I'dinance  ])as8 
n tains  matter 
'."  The  only 
,  "  to  consoli- 
eity  of  Bruns- 

to  make  valid 
ayor  ami  city 
h1,  and  not  in 
<ria  or  of  the 
had  V)cen  au- 
f  this  state  or 
ed,  intro<lnee6 
iiKsive  subject 
ich  liad  there- 
erstund  -svlien 
incorporating 
ubject  matter 
the  acts  and 
ivick,  was  also 
ly  have  before 
)  valid  l)y  that 
everal  provis- 
atiou  as  this 


that  the  constitution  intended  to  prohibit,  when  it  excluded  more 
than  one  subject  matter  from  beinfj;  embraced  in  the  same  law. 
It  was  intended  to  prevent  surprise,  deception  and  fraud,  by  co- 
vertly inserting  into  the  net  a  distinct  subject  matter,  not  refer- 
red to  in  tlie  oapticm  of  the  act. 

Inasmucli  as  it  appears  on  the  face  of  the  record  that  the  two 
hoys  were  imprisoned  because  tliey  did  not  pay  the  fine  of  $5 
imposed  on  tliem  respectively,  their  imprisonment  was  illegal, 
and  the  court  erred  in  not  discharging  them. 

Let  tlie  judgment  of  the  court  below  be  reversed. 


Lauk  vs.  State. 

(55  Ga.,  4;J5.) 

Habeas  Cohpis:    Praetke. 


A  writ  of  oiTor  to  !in  onlff  n-fiisintf  a  distharjs'c  on  habeas  corpus  will  not  be 
dismissed,  l)Pcaus('  wiicn  tin'  aruiuin'nt  i>;  rcaoliPil,  the  tonn  of  imprisonment 
which  is  sot  up  in  tlio  ivtnni  to  tho  writ  of  hahcan  corpaa  haw  expu-ed. 
I'ri'Hnininjf  the  imprisoniUHnt  to  be  at  an  end,  becanse  the  sentence  has  ex- 
pireih  would  be  to  tak''  for  tp'anted  the  validity  of  tJio  sentence  wliidi  k-  tlie 
very  matter  in  qucKtion. 

Br.KCKi.Kv,  J.  The  relator,  plaintifi'  in  error,  was  sentenced 
for  simple  larceny  by  the  county  court  of  Eichinond,  in  July, 
1874.  The  terms  of  the  sentence  were,  "  to  work  in  the  chain- 
(ran"  on  the  streets  of  Augusta,  for  twelve  months."  lie  sued 
out  a  writ  of  /lahcts  rorjius  in  April,  1875,  on  the  ground  that 
his  detention  was  under  this  sentence,  and  that  the  same  was 
illeii-al.  The  return  to  the  writ  set  up  the  sentence  as  legal  war- 
rant and  authority.  The  judge  below  refused  a  discharge,  and 
on  that  refusal  a  writ  of  error  was  prosecuted  to  this  court,  and 
filed  here  in  ^Fay,  1875. 

1.  On  the  call  of  the  case  for  argument,  in  the  present  montli 
of  November,  the  defendant  in  error  moved  to  dismiss  it,  be- 
cause the  sentence  had  expired  by  its  own  limit^ition.  The  mo- 
tion was  overruled.  Jt  did  not  appear  from  the  record,  or  other- 
wise, that  the  imprisonment  had  ceased.  It  could  not  be  pre- 
sumed to  have  ceased,  without  deciding  on  the  question  made 
by  the  writ  of  error,  namely,  the  legality  of  the  sentence.    An 


Ti 


T;   V? 


'Wf 


664 


AMERICAN  CRIMINAL  REPORTS. 


illef,'nl  imi)risonmciit  is  not  to  be  supposed  to  terminate  in  n  vol- 
untiuy  diselinrgc.  It  is  tlie  duty  of  judicial  tribiinal-s,  wliou  ad- 
minibtering  the  remedy  of  /itdfc/fM  c  ^rjtuft,  to  see  that  it  is  iiiade 
ctrectual  l)y  proper  legal  instrumentality,  and  to  tal<e  notliingfdr 
granted.  Those  who  imprison  another  by  virtue  of  an  illcj,'al 
judgment  might  not  scruple  to  protract  the  imjirisonnient  iiiikf- 
initely.  IJesides,  even  if  the  relator  were  now  at  liberty,  and  if 
this  fact  appeared  to  the  court  by  proper  evidence,  there  might 
be  reason  for  })roceeding  with  this  writ  of  error  to  settle,  l)y  a 
final  judgment,  the  legal  relation  between  him  and  those  whu 
detained  him,  at  the  time  the  writ  of  haheas  c(»'j)i/,'<  issued. 
Future  proceedings  might  depend  upon  such  a  judgment.  r)nt 
this  is  a  mere  suggestion;  we  ])lacc  the  refusal  to  dismiss  tlio 
writ  of  error  U])on  the  ground  that  to  ])resume  the  imi)ris(inineiit 
to  be  at  an  end,  because  the  sentence  has  expired,  would  be  to 
take  for  gi'anted  the  validity  of  the  sentence,  which  is  the  very 
matter  in  question. 

[Tlie  remainder  of  the  opinion  ia  not  considered  of  general  importtuice.    Rep.] 


TiLTON  r.f.  State. 

(o2  Ga.,  47S.) 

Practick:    PoUiufi  jury. 

In  a  criminal  cise  tlie  respondent  has  a  leyal  rijirlit  to  poll  the  juiy  at  tiii"'  proper 

time,  and  it  is  not  in  the  dLscretionar>'  [tower  of  the  court  to  refusf  it. 
Tlie  proper  time  to  poll  the  jury  is  after  the  venUct  has  been  annouuceil. 

CuATUAM  Superior  Court.  May  term,  1S74.  Before  Judge 
Bakti.k'it. 

Tilton  was  placed  on  trial  for  the  offense  of  an  assault  and  bat- 
tery, lie  pleaded  not  guilty.  The  jury  found  to  the  coiitrarv. 
After  the  verdict  had  been  read,  but  before  it  had  Ijeen  reconktl, 
in  the  presence  of  the  jury,  the  defendant  moved  that  they  bo 
polled.  The  motion  was  overruled  upon  the  ground  that  it  caino 
too  late.  The  defendant  moved  for  a  new  trial  on  account  uf 
error  in  this  decision.  The  motion  was  overruled,  and  the  de- 
fendant excepted. 

A.  B.  Smith,  for  plaintiff  in  error. 

Albert  li.  Lamar,  Solicitor  General,  for  the  state. 


V-^i 


latc  ill  fi  vol- 
ills,  Avliou  ad- 
it  it  is  iii!i<]o 
e  iiutliiii^'  fur 

of    ail     ill(';r;il 

luiicnt  indi'f. 
iberh-,  and  if 
tlicre  iiiiglit 
o  scttU',  l)y  u 
1(1  tliijse  will  I 
'fjxix  issiiod. 
Ignioiit.  l^it 
o  dismiss  tlic 
inju'isonnieiit 

,  AVOllld   lif  to 

li  is  the  very 
portonce.    Rkp.] 


jmy  at  tlio  proper 
0  rcfusi'  it. 


umouiiLL'tl 


Before  Judge 

isault  and  Lat- 
»  the  contrary. 
Ijeeii  recorded, 
1  that  they  Ijo 
d  that  it  came 
on  ac<x»iiiit  cf 
l1,  and  the  de- 


ite. 


WARD  y.  PEOriE. 


565 


McCay,  J.  1.  In  the  case  otJf alone  v.  The  State,  49  Ga., 
211,  this  court  held,  that  the  proper  time  to  ask  for  leave  to  poll 
the  jury  was  after  the  verdict  was  read,  and  wo  adhere  to  that 
ruling.  How  is  the  prisoner  to  know  whether  he  desires  to  poll 
them  until  ho  knows  what  the  verdict  is?  It  may  be  in  his 
favor.  The  Enj^lish  practice  was  for  the  foreman  to  render  tho 
verdict  viva  voce.  How  could  a  juryman  answer  until  the  fore- 
man had  spoken?  The  court  rel'i.^cdto  permit  the  jury  to  bo 
])olled  because  the  demand  came  too  late.  This  was  error.  But, 
it  is  said,  the  leave  to  poll  rests  in  tlie  discretion  of  the  eourt. 
It  might  be  enough  to  say,  that  in  this  case  the  judge  did  not 
exercise  his  discretion,  and  that  the  prisoner  has  not,  in  fact,  had 
even  the  opinion  of  the  court  that  it  was  not  wise  to  permit  him 
to  poll  the  jury.  Had  the  judge  not  thought  th*)  time  gf>ne  by, 
miybe  ho  would  have  allowed  it. 

2.  But  we  are  of  the  opinion  that  in  criminal  cases  the  privi- 
lege of  ])olling  a  jury  is  a  legal  right  in  the  defendant,  and  dooo 
not  depend  on  the  discretion  of  the  court.  In  an  experience  of 
thirty  years  at  the  bar,  I  have  never  known  it  denied  to  a  pris- 
oner demanding  it,  and  my  brethren,  one  of  whom  lias  an  expe- 
rience of  nearly  fifty  years,  say  the  same.  And  this  seema  to  bo 
the  settled  rule.  1  Wend.,  91;  IS  John.,  1S7;  2  Ala.,  102;  2 
Bale,  r.  C,  299,  300. 

The  cases  in  this  court,  where  the  privilege  has  been  said  to 

depend  on  the  discretion  of  the  court,  were  all  civil  cases,  and 

the  court  has  distinctly  confined  the  ruling  to  civil  cases.    6  Ga., 

464;  22  id.,  431;  41  id.,  465;  31  id.,  601. 

Judgment  reversed. 


W.MtD  V8.  People. 
(30  Midi.,  IIG.) 
Waive  of  jv.nj  in  misdnncanor  —  Constitutional  law. 

On  Uie  triiJ  of  a  crimiiml  complaint  for  an  aasaalt  and  battery,  before  a  justice 
of  the  peace,  a  defeiulant  may  waive  his  right  to  a  jury,  where  he  expressly 
so  elects,  and  if  he  does  bo,  a  trial  without  a  jury  is  not  a  violation  of  liis 
constitutional  rights. 

Erkou  to  Kent  Circuit. 

0.  11.  Look,  for  ])laintifi'  in  error.    Isaac  Marston,  Attorney 
General,  for  the  people. 


-"  n  I )  -m 


1^ 


666 


AMERICAX  CRIMINAL  REPORTS. 


.  d 


m 


CiiiMSTiAxcv,  J.  The  only  question  in  this  case  is,  wlieii  a 
deft'iulant  brought  before  Ji  justice  of  the  peace  upon  a  criiuiiuil 
coniphxiiit  for  a  simple  assault  and  battery,  triable  by  a  ju.stice 
court,  under  chapter  Oi  of  the  lievised  Statutes  of  ISif,  (("omp. 
L.  of  1871,  ch.  17l>),  having  ])lea(led  nitt  guilty,  and  being  asked 
by  the  justice  if  he  wished  a  trial  by  a  jury,  declares  that  he  dues 
not,  and  submits  to  a  trial  without  calling  for  a  jury,  whether, 
under  our  constitution,  a  trial  by  the  justice  without  a  jury  U 
valid,  or  whether  it  must  be  regarded  as  a  viulation  of  the  dc- ' 
fendant's  constitutional  rights. 

The  statute  in  question  (sec.  0,  ch.  170,  Comp.  L.  of  IsTl) 
not  only  provides  that  he  may  be  tried  by  the  justice,  under  such 
circumstances,  but  that  the  justice  may  proceed  to  try  the  is?-ue 
ami  determine  the  case,  "  if  no  jury  be  demanded.'' 

Tlxti  constitution  (art.  0,  sec.  IS)  ])rovides  that  justices  of  the 
peace  "  shall  have  such  criminal  jurisdiction,  and  i>erform  sudi 
duties  as  shall  be  prescribed  by  the  legislature."  ]iut  the  sec- 
tion upon  which  the  plaintifl'  in  error  relies  is  section  'J7  of  the 
same  article,  which  is  in  these  words:  "The  trial  by  jury  shall 
remain;  but  shall  be  deemed  to  be  waived  in  all  civil  cases, 
■unless  demanded  by  one  of  the  parties,  in  such  maimer  as  shall 
be  prescribed  by  law." 

It  is  very  clear  that  this  section,  in  its  application  to  criminal 
cases,  does  not  authorize  any  implied  waiver  of  a  jury  from  tlie 
silence  of  a  defendant,  or  his  mere  failure  to  demand  a  jury,  ami 
in  my  opinion,  though  the  point  does  not  arise  here,  in  a  criiui- 
3ial  case,  where,  under  our  hunuine  system  of  administering 
criminal  law,  nothing  is  to  be  inferred  against  a  prisoner  for  his; 
standing  mute;  he  cannot  proj^erly  be  regarded  as  having  waived 
a  jury,  a  trial  by  which  is  generally  esteemed  a  privilege,  by 
merely  failing  to  demand  it,  notwithstanding  the  statute  cited 
so  provides.  But  upon  this  point,  as  it  is  not  necessarily  in- 
volved, my  brethren  express  no  opinion.  Jiut  it  is  further  in- 
sisted by  the  plaintiil'  in  error,  that  the  provisions  of  secti()n  27, 
article  S  of  the  constitution,  above  cited,  expressly  providing 
that  tlic  right  of  trial  by  jury  shall  be  deemed  to  be  waived  in 
civil  cases,  unless  denuvnded,  etc.,  involves  an  inqdied  i)rohibition 
against  any  waiver  of  trial  by  jury  in  a  criminal  cause.  I'ut  while 
I  think  it  may  be  regarded  as  an  implied  prohibition  against 
Laving  the  mere  failure  of  the  defendant  to  demand  a  jury  trial 


STATE  r.  CASSADY. 


567 


fl 


se  is,  M-Leii  a 
>n  II  criiuinal 
I'.V  H  jii.xtice 

bfiiig  a^kod 
5  that  Iieddfs 
iry,  whetliLT, 
nit  a  jiii-y  U 
m  ol'  tho  dc-  ■ 

L.  of  ]s:i) 
e,  muler  hiic'li 
try  tlic  ijr-ue 

iritices  of  tlie 
)crfonii  suL'Ii 
But  tlie  i^cc. 
oil  L'7  of  tlie 
'*y  j'""y  t^liall 
I  civil  ca.soii, 
liner  as  shall 

n  to  criminal 
urj  from  the 
iclii  jury,  ami 
i,  in  a  crinii- 
(liuinistcriiii,' 
sonor  fur  his 
ivini^  waived 
privilf^re,  hy 
statute  cited 
>ccssarily  in- 
i  further  in- 
if  section  i!7, 
ly  providing 
)e  waived  iu 
1  prohibition 
.  I'ut  while 
tion  aii'ain.st 
a  jury  trial 


treated  as  a  waiver  of  such  trial,  I  do  not  think  there  is  anything 
in  the  pro^  ision  which  prevents  the  defendant  from  expressly 
electing  whether  lie  will  liavo  a  jury  trial  or  be  tried  by  the 
court  without  a  jury. 

The  law  secures  to  him  the  right  of  being  tried  in  either  way, 
as  he  may  ]u-efer,  and  though  a  trial  by  jury  might  generally  be 
considered  as  more  advantageous  to  a  defendant,  yet,  he  may 
sometimes  prefer  to  be  tried  by  the  court,  without  a  jury;  and, 
if  he  deems  it  a  privilege  to  be  thus  tried,  it  certainly  cannot  be 
any  violation  of  his  constitutional  rights  to  allow  him  to  make 
that  election,  by  an  express  declaration  that  he  does  not  wish  to 
be  tried  by  a  jury. 

There  is  nothing  in  Jlill  v.  Peojyle,  IG  Mich.,  351,  which  con- 
flicts with  this  conclusion. 

The  judgment  of  the  circuit  court  affirming  the  judgment  of 
the  justice  must  therefore  be  affirmed. 

The  other  justices  concurred. 


State  vs.  Cassadt. 

(12  Kan.,  550.) 

IxFOiiMATiox:  ConstitutioiKil  vUjhf  —  JiirlsiJictlon  of  act.i  in  (mother  state  — 
Error  in  chanje  requested  —  Kjrect  of  recent  possession  — Arraiffiiiiient 
ami  ith'ii. 

The  ivsiiondoiit  wits  charj^od,  in  an  infonnation  for  burtjlaiy  aiul  larconj',  a.s  a 
lirincipal.  He  Wiis  found  guilty  of  Ix'ing  accessory  before  the  fact  to  strand 
larceny.  The  statute  penults  an  accessory  to  be  charured  and  convicted  as 
if  he  were  a  principal.  Ilehl,  not  in  deroj^ation  of  his  constitutional  rifxht 
"to  deniaml  the  naturi^  and  cause  of  the  accusation  ayaiust  hiiu,"  and  that 
there  was  no  error  in  the  verdict. 

Whether  a  person  who  in  anotiier  state  becomes  accessoiy  before  the  fact  to  a 
felony  committed  in  Kansas  can  bo  punished  under  the  Kansas  statutes, 
hav'injjT  done  himself  no  act  within  the  state,  quwre. 

If  there  is  any  en'or  in  a  reiinest  to  charge,  or  if  a  re(iuest  to  charge  in  the  di3- 
junctive  is  asked,  either  branch  of  which  is  erroneous,  Uie  whole  charge  is 
proper'.,    efnsed. 

A  charge  ♦hat  "  the  popsession  of  stolen  goods  recently  after  they  are  stolen  ii 
a  strong  im'sumption  of  guilt,"  is  not  eiror. 

Possession  of  property  nvently  stolen  nudvcs  out  a  prima  fueie  case  of  guilt, 
and  throws  upon  tiic  defendant  the  burden  of  explaining  that  possession. 

Where  there  was  no  lUTaignmcnt  luid  i)lea,  but  tlie  respondent,  being  pre- 


■ffTiff 


.1 

4i 

> 

.11 

■'if 
i 

56S  AMERICAN  CRIMINAL  REPORTS. 

sent,  annonnced  himself  ready  for  trial,  and  went  to  trial,  without  o]iji>c- 
tion,  tiic  oinii«sion  of  the  arraignment  and  plea  will  not  avail  tlio  resiiouiluut 
on  a  motion  for  a  now  trial  or  in  arrest  of  judgment. 

liiiKWKK,  J.  Defendatit  -was  tried  in  the  district  court  of 
Atchison  county,  on  an  information  charging  burglarv  and  grand 
larceny.  Tlie  jury  found  him  gnilty  of  being  *'  an  ac(*es!5ory  l»e- 
fore  tlie  fact  to  grand  hvrceny."  Upon  this  verdict  he  was  sen- 
tenced to  two  years'  imprisonment.  Several  questions  are  jire- 
sented  in  the  record.  The  first  important  one  is,  whether  under 
an  information  charging  a  party  as  principal,  he  can  he  convicted 
of  being  an  accessory  before  the  fact'^  In  other  words,  must  not 
the  ijiformation  charge  him  as  accessor}',  and  not  as  principuH 
Section  115  of  the  Code  of  Criminal  Procedure  (Gen.  Stat.,  S?)9) 
provides  that  '"any  person  who  counsels,  aids  or  abets  in  the 
commission  of  any  oliense  may  be  charged,  tried  and  convicted 
in  the  same  manner  as  if  he  were  a  principal."  See,  also,  jj  2s7 
of  the  crimes  act,  (Jen.  Stat.,  380,  ch.  31.  The  intentiitn  of  the 
leafislature  in  these  sections  is  obvious.  It  authorizes  the  cliar<:- 
ingof  an  accessory  before  the  fact  as  a  princijial.  Ti»e  intention 
being  ])lain,  the  ([uestion  of  power  is  raised.  Sec.  10  of  the  bill 
of  rights  ((iren.  Stat.,  3i>)  declares  that  "In  all  prosecutions,  the 
accused  shall  be  allowed  ....  to  demand  the  nature  and  cause 
of  the  accusation  against  him."  Hence  couiisel  say:  "  Defend- 
ant is  charged  as  principal,  and  not  as  accessory  before  the  fact, 
and  did  not  know  and  could  not  have  known,  under  the  informa- 
tion, that  any  evidence  would  be  introduced  tending  to  convict 
him  as  accessory.  Jle  had  a  right  to  demand  the  "nature  and 
cause  of  the  accusation  against  him,"  and  being  charged  as  ])rinci- 
pal,  was  prepared  to  defend  himself  against  such  charge,  and  no 
other.  This  section  does  not  attempt  to  require  tiiat  the  ])ar- 
ticular  couTiection  an  accused  lias  with  the  otlense  charged  shall 
l)e  stated  in  the  indictment  or  information.  It  does  not  attempt 
to  indicate  liow  much  of  detail  or  s])eeification  is  essential  to  a 
criminal  pleading.  It  requires  of  course  a  statement  of  the 
crime  charged.  Under  an  information  for  larceny,  there  could 
be  no  conviction  for  manslaughter.  liut  when  the  critne  com- 
mitted is  charged  —  larceiiy,  as  in  this  case  —  then  it  is  not 
made  imperative  by  this  section  that  the  information  state  the 
particular  acts  done  or  part  ]>erformed  by  the  accused  in  c<»unec- 
tiou  therewith.     It  is  true,  that  at  common  law  a  distinction  was 


1fl 


STATE  V.  CASSADY. 


66r/ 


.  without  o1)jt>c. 
the  ivsiioiuluut 


•let  court  of 
rv  and  ^'raiid 
^ic'ct'ssory  he- 
Iie  was  sen- 
>iis  aro  ])re- 
letlier  under 
1)0  convicted 
dfi,  must  not 
»s  principuH 
n.  Stat.,  8?>1)) 
abets  in  tlie 
nd  convicted 
e,  also,  ^  2S7 
iiitioii  of  the 
?s  the  chari,'. 
'ho  intention 
[0  of  the  hill 
editions,  tiie 
I'c  and  cause 
:    "  Defend- 
foro  the  fact, 
the  infonna- 
,i;  to  convict 
'*  nature  and 
!:ed  aspi-inci- 
arifc,  and  no 
liat  tlie  ]>iir- 
hari^ed  shall 
not  attein])t 
:ssontial  to  a 
nent  of  the 
there  could 
crime  com- 
;n   it  is  not 
on  state  the 
1  in  connec- 
ti  act  ion  was 


made  between  principals  and  accessories,  according  to  the  extent 
of  participation  in  the  offense.  The  immediate  actor  was  called 
principal  in  the  first  degree;  the  one  present  aiding  and  abet- 
ting, principal  in  the  second  degree;  the  one  procuring,  counsel- 
ing or  commanding  the  offense,  though  absent  at  the  time  of  its 
commission,  accessory  before  the  fact;  and  the  one  knowing  of 
the  felony,  and  receiving  and  assisting  the  felon,  accessory  after 
the  fact. 

It  is  also  true  that  under  an  indictment  charging  one  as  prin- 
cii)al,  it  was  impossible  to  convict  him  as  accessory,  and  vice 
vemi.  1  Chit.  Cr.  Law,  272;  Hex  v.  Plant,  7  Car.  &  P.,  575; 
Whart.  Cr.  Law,  §  114.  And  as  there  could  be  no  accessory 
without  a  principal,  the  former  could  not,  against  his  consent, 
be  convicted,  except  jointly  with  or  after  the  latter.  1  Bish.  Cr. 
Law,  §§  C07,  0(!8.  Yet  these  distinctions  were  all  based  upon 
the  relation  of  the  accused  to  the  crime.  In  the  commission  of 
one  offense,  all  four  classes  might  participate.  The  distinctions 
were  arbitrary,  and  their  enforcemetit,  and  the  rules  growiuij  out 
of  them,  often  operated  to  the  hindrance  of  justice.  Yet,  wise 
or  unwise,  the}'  simply  classified  participants  in  one  offense. 
And  being  arbitrary,  they  may  all  be  abolished,  and  all  partici- 
pants in  a  crime  bo  declared  equally  and  alike  guilty,  without 
regard  to  their  proximity  thereto,  or  the  extent  of  their  partici- 
pation therein.  The  legislature  has  not  attempted  to  say  that 
the  crime  committed  shall  not  be  charged;  that  the  "nature and 
cause  of  the  accusation  "  shall  not  be  stated;  but  has  simply  de- 
clared what  acts  shall  render  one  g'>-ilty  of  this  crime.  The  one 
acting,  the  one  present,  aiding  and  abetting,  and  the  one  absent, 
counseling,  aiding  and  abetting,  are  declared  to  be  ecpially  and 
alike  guilty.  Nor  is  this  the  introduction  of  a  new  or  harsh 
rule.  At  common  law,  if  two  engaged  in  the  commission  of  an 
ordinary  felony,  and  in  furtherance  of  it,  one  committed  murder, 
both  were  declared  equally  guilty  thereof.  The  common  con- 
sent to  do  wrong  rendered  each  responsible  for  all  acts  done  in 
furtherance  of  the  wrongful  purpose  Under  our  statutes,  one 
indicted  for  an  offense  consisting  of  different  degrees  may  be 
convicted  of  the  degree  charged,  or  of  any  degree  inferior  there- 
to, or  of  an  attempt  to  commit  the  offense.  Crim.  Code,  §  121. 
A  somewhat  similar  question  was  before  the  court  in  the  case  of 
McFarland  v.  The  State,  i  Kan.,  68,  and  the  power  of  the 


fl 


mf 


it  *'t  1 


I  5 


570 


AMERICAN  CRIMINAL  REPORTS. 


legislature  to  provide  that  property  stolen  outside  and  brouglit 
into  this  state  could  be  charged  to  have  been  stijlen  within  the 
state  was  sustained.  We  see,  therefttre,  no  error  in  tlie  ruling 
of  the  district  court  upon  tliis  point.  The  verdict  niiglit  ]tr()p. 
erly  have  been  simply  guilty  of  larceny.  Yet  sitecifyiiig  tlio 
particular  connection  of  defendant  with  tlie  crime  did  not  vitiate 
the  verdict.  It  wrought  no  prejudice  to  his  r:^  ■.  s.  Lewln  v. 
The  State,  4  Kan.,  301). 

A  second  very  important  question  presented  and  discussed  by 
counsel  in  their  brief  is,  whether  a  person,  who,  out  of  the  state, 
becomes  an  accessory  before  tlie  fact  to  a  felony  committed  witliin 
the  state,  can  be  i)unished  under  our  statutes.  Does  tlie  power 
of  the  state  reach  to  such  extra-territorial  acts?  And  if  it  doe-*, 
has  the  state  by  statute  assumed  to  exercise  this  ])ower?  That 
this  (piestion  is  one  of  no  little  difficulty,  see  the  cases  of  Johm 
V.  The  State,  ID  Ind.,  4^21;  The  State  v.  Wi/clof,  31  N.  J.,  05; 
1  Bish.  on  Crim.  Law,  §  111.  We  do  not  care  to  enter  into  an 
examination  of  this  question  until  it  is  fairly  before  us;  and  as 
the  record  now  stands,  we  think  the  instructions  aimed  at  this 
question  were  ])roperly  refused  on  other  grounds.  The  testimony 
is  not  preserved.  In  the  bill  of  excej)tions  it  is  stated  that  the  de- 
fendant ottered  evidence  tending  to  prove  that  the  first  C(»nnection 
of  any  kind  he  ever  had  with  the  stolen  ])roperty  was  in  the  state 
of  jMissouri,  and  also  tending  to  i)rove  that  he  had  not  aided,  abet- 
ted or  counseled  any  one  in  the  state  of  Kansas  in  the  commis- 
sion of  the  oU'ense,  and  asked  the  following  instruction :  That  "  if 
the  jury  believe  the  said  skins  were  actually  stolen,  and  believe 
that  the  lirst  connection  defendant  had  with  them  was  in  the  state 
of  Missouri,  then  they  must  ac([uit  the  defendant;  and  if  they 
have  any  doubt  about  this  fact  they  must  acquit  the  defendant." 
This  instruction,  as  tendered,  the  court  refused,  but  gave  it  mod- 
ified by  omitting  the  last  clause,  and  adding  to  the  rest  of  the 
instruction  this  jtroviso:  ''unless  you  further  believe  from  the 
evidence  he  counseled,  aided  and  abetted  the  taking  of  the  same 
before  they  were  so  taken."  It  is  evident  the  instruction  asked 
was  wrong.  The  defendant  is  not  entitled  to  the  benefit  of  every 
doubt,  but  only  of  a  reasonable  d<jubt.  Again,  the  instruction 
refers  to  the  first  connection  of  the  defendant  with  the  prajtei'ti/ 
stolen,  and  not  with  the  crime  ©f  steallitfj  it.  It  ignores  that 
particular  phase  of  crime,  of  which  the  jury  found  the  defendant 


i 


STATE  V.  CASSADY. 


571 


lul  brought 
»  within  the 
the  niliiKi- 
iiii^Iit  ]>r()|). 
icifyiiig  tlie 
I  iKtt  vitiate 
Lew  In  V. 

iscnssetl  hy 
f  tlic  state, 
tted  witliin 
s  the  jHtwer 
J  if  it  doe*, 
wer?     That 
js  of  rfdlins 
1  :X.  J.,  05; 
iter  into  an 
us;  ami  as 
iiiit'd  at  this 
e  testimony 
tliut  tlie  tle- 
;  connection 
ill  the.<tate 
aided, abet 
he  cominis- 
i:   That -if 
and  believe 
in  the  state 
and  if  tliey 
lefenthvnt." 
;ave  it  mod- 
rest  of  the 
e  from  the 
•f  the  siMio 
etion  askt'd 
tit  of  every 
instruction 
e  pi'()2>ertij 
,'nores  that 
I  defendant 


guilty.  The  verdict  demonstrates  the  impropriety  of  the  in- 
strnction.  The  addition  made  by  the  judge,  uncjuestionably  good 
law  in  tiic  abstract,  appears  from  the  verdict  to  have  been  appro- 
priate to  the  particular  facts  of  this  case.  The  other  instruction 
bearing  upon  this  (question  is  thus  presented  in  the  bill  of  excep- 
tions: "And  the  said  defendant  having  ofJered  some  evidence 
tending  to  show  that  he  never  had  said  furs  so  alleged  to  have 
been  stolen  in  his  possession  or  under  his  control  in  the  state  of 
Kansas,  and  also  having  offered  some  evidence  tending  to  show 
that  he  had  not  aided,  counseled  or  abetted  any  person  in  the  com- 
mission of  said  offense  in  the  state  of  Kansas,  asked  the  follow- 
ing instruction:  'If  the  jury  have  any  reasonable  doubt  that 
the  defendant  ever  had  the  furs  and  skins  alleged  to  have  been 
stolen  in  his  possession  in  the  state  of  Kansas,  or  any  reasonable 
doubt  tliat  he  committed  the  oflense  charged  against  him  in  the 
Btate  of  Kansas,  either  as  ])rincipal  or  as  accessory  before  the  fact, 
then  they  must  acquit  the  defendant.'  "  This  instruction  was  re- 
fused. It  ])rescnts  in  a  disjunctive  statement  two  conditions  of 
acquittal.  Of  course  if  there  was  error  in  either,  the  instruction 
as  a  whole  was  properly  refused.  Xow  the  first  part  of  this  in- 
struction is  subject  to  the  same  criticism  as  that  i)laced  upon  the 
instruction  just  considered.  It  ignores  that  of  which  the  jury 
found  the  defendant  guilty,  and  directs  ac(pittal  upon  matters 
which,  in  the  view  taken  by  the  jury  of  the  testimony,  and  prop- 
erly so  taken,  as  we  must  presume  in  the  absence  of  the  evidence, 
were  wholly  immaterial.  It  directs  an  acquittal  if  the  jury  have 
reasonable  doubt  of  his  ever  having  the  stolen  property  in  his 
possession  in  the  state  of  Kansas.  But  if  he  counseled,  aided 
and  abetted  the  stealing,  it  matters  not  whether  he  ever  had  pos- 
session anywliere  of  the  stolen  prc>])erty.  It  lifts  a  single  cir- 
cumstance, which  may  have  been  wholly  unimportant,  into  an 
essential  and  determining  consideration.  "We  think,  therefore, 
the  court  might  proj)erly  have  refused  these  instructions  without 
considering  the  question  discussed  by  counsel. 

A  third  question  is  thus  presented  in  the  bill  of  exceptions: 
"The  defendant  having  offered  some  evidence  tending  to  prove 
that  the  only  connection  he  had  with  said  alleged  offense  was,  the 
possession  of  said  furs  alleged  to  have  been  stolen  in  the  state  of 
Missouri,  recently  after  they  had  been  stolen,  asked  the  following 
instruction:     *  That  proof  of  possession  of  the  furs  by  defendant 


1-  !(; 


672 


AMERICAN  CRIMINAL  REPORTS. 


in  tlie  state  of  Missouri,  recently  after  they  had  been  stolen,  unac- 
companieU  l»y  any  other  circumstance  of  guilt,  is  not  suiHcient  to 
throw  the  burden  of  proof  upon  the  defendant  to  show  such  pog. 
session  lawful,  and  is  not  sutKcient  of  itself  to  authorize  a  con- 
viction.'  "     Tliis  was  refused.     On  the  contrary,  at  the  instance 
of  the  prosecuting  attorney,  the  court  instructed  the  jury,  that 
"  the  possession  of  stolen  goods  recently  after  they  are  stolen  is  a 
strong  ])resuniption  of  guilt."     That  the  rule  that  possession  of 
property  recently  stolen  nnvkes  out  a  prima  fade  case  of  guilt 
and  throws  upon  the  defendant  the  burden  of  explaining  that  jios- 
session,  is  one  of  long  standing  and  ab  ndantly  fortified  by  au- 
thorities,  no  one  can  ijuestion.     See  aniong  others,  1  Greenl.  on 
Ev.,  §  34;  liurrill  on  Circumstantial  Ev.,  440,  and  cases  cited  in 
notes;  1  Phil,  on  Ev.,  G34,  and  notes,  with  cases  cited  therein; 
and  among  later  cases,  Momlra(jon  v.  The  State,  33  Tex.,  460; 
Price's  Case,  21  (iratt.  (Va.),  S64;  Unger  v.  The  State,  42  .Miss., 
(542;  State  v.  Tamer,  G5  X.  C,  502;  KnuJccrhocker  v.  I\oj,U,i'i 
X.  Y.,  177.     Such  possession  is  said  to  raise  a  presumption  of 
guilt,  and  if  unexplained,  is  sufficient  to  warrant  a  conviction. 
Some  attempts  liave  been  made  to  qualify  or  limit  this  rule.    In 
The  State  v.  Hoihje,  50  N.  11.,  510,  it  was  held  that  this  pa-, 
sumption  of  guilt  was  not  a  presumption  of  law,  but  one  of  fact. 
In  IWqile  V.  Chamhers,  18  Cal,  382;  People  v.  Ah-ki,  20  id., 
172;  PeiqiU  V.  Antonio,  27  id.,  404;  and  Conkin right  v.  The 
People,  35  111.,  204,  it  was  held  that  the  recent  ])ossessiun  of 
stolen  property,  unaccompanied  by  other  circumstances  of  guilt, 
is  not  sufficient  to  warrant  a  conviction.     In  3  (Jreeid.  Ev.,  «cc. 
31,  it  is  intimated  that  the  rule  as  given  in  1  Greeid.,  sec.  34, 
heretofore  cited,  is  stated  too  broadly,  and  that  perhaps  there 
should  be  something  more  than  recent  possession  to  justify  a 
verdict  of  guilty.     Still  the  overwhelming  weight  of  authority 
is  with  the  rule  as  stated;  and, as  fairly  and  reasonably  interpre- 
ted, we  think  it  ought  to  stand.     It  does  not  assume  that  tliero 
is  any  certain  time,  possession  within  which  is  recent  })o»session, 
and  therefore  proof  of  guilt.     It  is  not  the  statement  of  an  abso- 
lute and  conclusive  legal  ])resumption.      It  is  a  ])resumption 
which  is  strong  or  weak  according  to  the  nature  of  the  projierty 
stolen,  the  time  aTid  ]>lace  of  the  larceny,  the  time  within  which 
the  possession  is  shown,  the  manner  of  holding,  and  the  various 
other  conditions  which,  appearing  in  any  case,  give  occasion  for 


m 

i 

l«-\ 

Bi 

STATE  V.  CASSADY. 


573 


stolen,  unac- 
suiHcient  to 
\v  such  pos- 
ori/e  SI  con- 
tlie  iiistanco 

'«  j>"'y>  that 
'e  stolen  is  a 
)ossesaion  of 
aso  of  (riiilt, 
iiii^  that  pus- 
tified  l)y  au. 
1  Greenl.  on 
xses  cited  in 
ted  tlierein; 
3  Tex.,  4S0; 
tic,  42  ]\liss., 
y.  y*t/yy/f,43 
ssuiiiption  of 
I  conviction, 
lis  rule.    In 
lat  this  pre. 
t  one  of  fut't. 
l/i-ki,  20  id., 
ri(j/it  'IK  Thii 
)ossei<sion  of 
ices  of  guilt, 
iiil.  Ev.,  see. 
L'ul.,  sec.  34, 
jrhaps  there 
to  jnstify  a 
)f  anthority 
)\y  interpre- 
e  that  there 
t  po&session, 
;  of  an  al)so- 
)resnnij)tion 
he  projierty 
itliin  which 
the  various 
occasion  for 


the  application  of  the  rule.  For  it  must  be  remembered  that  a 
jury  never  passes  upon  this  as  an  abstract  question,  isolated 
from  facts  and  persons.  A  larceny  must  always  be  ])roved,  be- 
fore there  can  be  any  presumption  as  to  who  is  the  thief.  Now, 
when  the  larceny  is  proved,  the  possession  may  be  shown  so  re- 
cently, so  almost  instantaneously  thereafter,  as  to  render  it  mor- 
ally certain  that  the  ]iossessor  was  the  thief.  To  declare  other- 
wise would  be  to  ignore  all  those  facts  of  human  experience  and 
conditions  of  human  action  which  support  the  rnle  of  evidence. 
To  instruct  a  jury  that  such  a  recent  possession  was  insufficient 
to  call  upon  the  defendant  for  an  explanation,  and,  unexplained, 
to  warrant  a  conviction,  would  insult  the  intelligence  of  every 
juror.  As  the  time  between  the  larceny  and  the  possession  is 
enlarged,  the  necessity  of  additional  evidence  appears,  and  in 
some  cases  the  fact  of  possession  may  be  but  a  slight  circum- 
stance indicative  of  guilt.  There  may,  of  course,  be  cases  where 
the  ]>ossession  is  so  long  after  the  larceny  that  the  court  ought  to 
instruct  the  jury  that  something  more  than  possession  must  be 
shown  to  justify  a  conviction,  but  as  there  may  be  cases  where 
that  possession  is  so  recent  as  to  warrant  a  verdict  of  guilty, 
this  court  cannot,  in  the  absence  of  a  full  statement  of  the  facts, 
say  that  the  district  court  erred  in  refusing  to  instruct  the  jury 
contrary  to  the  ancient  rule. 

"Whatever  sugfjestions,  explanations  or  qualifications  may  be 
appropriate  in  any  case,  will  depend  upon  the  peculiar  facts  of 
that  case.  All  that  we  decide  here  is,  that  it  is  not  necessarily 
error  to  refuee  an  instruction  like  that  asked,  even  when  there  is 
some  testimony  tending  to  show  that  the  only  connection  defend- 
ant had  with  the  offense  was  in  the  recent  possession  of  the 
stolen  ])roperty.  One  suggestion  more  in  reference  to  this  ques- 
tion: The  verdict  of  the  jury  shows  that  defendant  was  not 
present  at  the  time  of  the  commission  of  the  oft'ense.  and  there- 
fore did  not  then  acquire  the  possession  of  the  stolen  property. 
"What  the  testimony  was  upon  which  the  jury  found  that  he 
incited,  procured,  counseled  or  abetted  beforehand  the  larceny, 
we  are  not  informed.  It  may  well  be  that  this  whole  matter  of 
recent  possession  was,  in  the  view  taken  by  the  jury  and  justi- 
fied by  the  testimony,  wholly  immateriah 

The  record  fails  to  show  that  defendant  was  arraigned  or 
pleaded  to  the  information.    It  shows  that  he  appeared  in  per- 


.■} 


674 


AMERICAN  CRIMINAL  REPORTS. 


son  ami  1»y  counsel,  niul  that  both  parties  hoijig  ready  for  trial 
on  the  ii)f(trinatit»n  filed,  a  jury  was  called  and  tlie  cas^e  trioil. 
An  affidavit  appear-s  in  tlic  transcript  to  the  efl'ect  that  as  a  mat- 
ter of  fact  the  defendant  was  not  arrai^jned,  and  did  not  ])lead; 
but  by  what  right  such  affi(hivit  appears  in  tlie  transcript  \vo  can 
not  tell.     It  was  not  made  a  part  ot  the  bill  of  e.\cepti(»iis,  nor 
docs  it  a])pear  to  have  been  used  upon  any  of  tlie  niotiuns  in 
the  case.      Assuming  it,  liowever,  to  be  proven,  that  the  deri'iid. 
ant  was  not  arraigned,  and  did  not  enter  a  f(»riinil  jdca,  but  be- 
ing ])resent  in  ])erson  and  by  counsel,  and  aimouncing  himsi'lf 
ready  for  trial  upon  the  information,  went  to  trial  before  a  jury 
regularly  impaneled  and  sworn,  and  submitted  the  (piestion  of 
guilt  to  their  determination,  will  the  omission  of  the  arraign- 
ment, or  formal  plea,  avail  the  defendant  thereafter,  either  on  a 
motion  for  new  trial,  or  in  arrest  of  judgment?     It  may  be  con- 
ceded that  at  common  law  it  woidd.     See  the  authorities  cited 
by  defendant  in  his  brief.     Ihit  under  our  statutes  we  think  a 
different  rule  mustol)tain.     I>y  section  1(51  of  the  Crlmiinil  Code 
(C4en.  Stat.,  840)  it  is  declared  that  when  a  person  shall  l>e  ar- 
raigned "  it  shall  not  be  necessary  to  ask  him   how  he  will  1m3 
tried;  and  if  he  deny  the  charge  in  any  form,  or  recjuire  a  trial, 
or  if  he  refuse  to  plead  or  answer,  and  in  all  cases  where  he  does 
not  confess  the  indictment  or  information  to  be  true,  a  plea  of 
not  guilty  shall  be  entered,  and  the  same  ])rocee(liiigs  shall  be 
had  in  all  respects  as  if  he  had  formall}'  pleaded   not  guilty." 
And  In-  secticui  2t>3  it  is  provided,  that  "in  iin  ai»poal,  the  court 
must  give  judgment  without  regard  to  techi\ical   errors  or  de- 
fects, or  to  excei>tions  which  do  not  affect  the  substantial  rights 
of  the  parties."     It  seems   to  ns  that  under  those  sections,  the 
omission  did  not  and  couhl  not  afl'ect  the  substantial   rights  of 
the  defendant,  and  therefore  is  not  ground  for  dis«:nrbing  the 
judgment.     77/6'  Sfufe  v.  Lcms,  10  Kan.,  157.     These  are  all  the 
questions  we  deem  it  necessary  to  consider,  and  there  a]ipearing 
in  them  no  substantial  error,  the  judgment  of  the  district  court 
will  be  affirmed. 

All  the  justices  concurred. 

Note.  —  The  following  note  on  the  eft'oct  of  the  nvent  unexplniiied  possostion 
of  stolon  i>ropfrty,  iis  evidence  in  ca-ses  of  larceny  and  kindred  oll'enses,  is  kindly 
contributed  hy  Michael  Fimane,  Esq.  It  is  believed  that  every  Aniericaii  oane  on 
the  subject  is  here  cited,  and  the  doctrine  for  which  it  is  an  autliority  accurately 
pointed  out.  —  Rkp. 


STATE  V.  CASSADY. 


HO 


'^♦ly  for  trial 
■'  f.'isf  ti-ifd. 
"it  us  11  niat- 
1  not  ])lea(l; 
Pi'ipt  \rtM'au 
't'|»ti(»iis,  iiur 
motions  ill 
tlie  (li'lV'iid. 

•ll'il,  Itllt  1)0- 

ill,:;  hiiiisc'lf 
»elVire  a  jury 
question  of 
lie  !irraiifii.. 
,  either  on  a 
may  lie  coii- 
•ritie.s  cited 
we  til  ink  a 
imiiiiit  Code 
^Iiall  l»e  ar- 
lie  will  Ik) 
iiii-e  a  trial, 
UTc  lie  does 
>^-',  a  plea  of 
isjfs  sliall   ill! 
<»t,  i^'iiilty.'' 
.1.  the  Court 
Tors  or  de- 
iitial  riu;lits 
oetions,  tlio 
il    rii^hts  of 
urhiiin^  the 
;  are  all  the 
!  appearintr 
strict  Court 


iPtl  possostion 
iscs,  is  kimlly 
'ricaii  ru:it'  on 
ity  accurately 


Tlie  frequency  with  which  the  possession  of  property  recontlj-  '^tr.en  occui-s  in 
cases  of  hirceny  a-s  evidence  of  j^niilt  sufr^ests  the  propriety  of  calling  attention  to 
some  of  tlie  hite  cases  in  which  the  question  lias  been  passed  upon,  which  greatly 
modify,  if  not  directly  alter,  the  doctrine  until  recently  considered  as  settled  on 
that  suhject. 

The  dwtrine  of  the  common  law  is  stated  by  Roscoe  to  be,  "  when  it  is  proven 
or  may  be  reasonably  presumed  that  the  property  in  queetion  is  stolen,  the  onus 
pvhiiiiili  is  sliifted,  and  the  possessor  is  bound  to  show  that  he  came  by  it  hon- 
estly, and  if  he  fails  to  do  so,  the  presumption  is  that  he  is  the  thief  or  the  re- 
ceiver, according  to  circumstances."    Rose.  Grim.  Ev.,  18. 

The  author  there  cites  a  numb<>r  of  cases  a.s  to  the  length  of  time  that  must 
elapse  before  the  accused  is  relieved  of  the  necessity  of  explaining  the  iwssession, 
showing  that  whether  possession  is  "  recent "  or  not,  hiis  always  been  regarded 
u«  a  question  of  law  to  be  declared  by  the  court,  as  distinguished  from  a  pre- 
sumption of  fact  to  be  found  by  the  jurj*. 

The  doctrine  of  the  common  law  is  approved  by  Green4eaf,  who  says:  "Pos- 
session of  the  fruits  of  crime  recently  after  its  commission  is  jmrna  facie  evidence 
of  guilty  jwssession,  and  if  unexjilained,  either  by  direct  evidence  or  attending 
cia'umstances,  or  by  the  chtaractcr  and  habits  of  hfe  of  the  possessor,  or  otherwise, 
it  is  taken  as  conclusive."    1  Greenl.  Ev.,  sec.  34. 

It  is  not  surprising  that  the  rule  laid  down  by  so  high  an  authority  was  followed 
l)y  most  of  till'  American  courts  in  the  earlier  cases,  and  accordingly  it  may  be 
saiil  that  the  weight  of  authority  on  this  subject  Wiis  greatly  in  favor  of  the  doc- 
trine of  (irei'iileaf.  Wh.art.  Crim.  Law,  728;  Com.  v.  Millard,  1  Mass.,  6;  State 
r.  liirirstir,  7  Vt.,  122;  State  i:  Emjh'man,  2  Ind.,  91;  State  r.  Smith,  2  id.,  402; 
Stat)'  r.  Mi'irick;  19  Me.,  :i98;  State  r.  U'enton,  9  Conn.,  o27;  Alzorth  v.  State,  10 
Fhv.,  207;  Ilii(/li<y  v.  Slate,  8  Humph.,  75;  State  v.  Wolff,  15  Mo.,  5:57;  Jones  v. 
Vcopk,  12  III.,  2'i9;  Kiiiclrrbockc)-  v.  People,  4=^  N.  Y.,  177;  State  i\  Bruier,  34 
Mo.,  537;  Wise  r.  State,  10  Fla.,  207;  State  r.  Gray,  37  Mo.,  463;  TulertiUe  v. 
State,  42  Ind.,  490;  Smothers  v.  State,  46  id.,  447;  State  v.  mUiams,  54  Mo., 
170;  Fidhr  r.  Slate,  4X  Ala.,  273;  Uri/er  r.  Slate,  42  Miss.,  042;  State  v.  Cassidi/, 
12  Kan.,  5.-)0;  Joiiex  r.  State,  49  Ind.,  549;  State  r.  Turner,  65  N.  C,  592;  State 
r.  En,  10  Nev.,  277;  State  i:  Groves,  72  N.  C,  482. 

Many  of  the  courts  refused  to  accept  this  rule,  not  only  Iwcause  it  deprived  the 
accused  of  the  right  to  have  the  jnry  pass,  uninfluenced  by  the  court,  u^ron  every 
fact  and  circumstance  in  the  ciuse  •indicative  of  guilt  or  innocence,  but  also  in  its 
enforcement,  it  was  found  to  impose  an  unjust  burden  on  the  accused;  it  shifted 
the  burden  of  proof,  and  niquired  the  accused,  at  the  peril  of  his  liberty,  to  make 
a  ri'asonable  explanation,  which  at  times,  however  candid  and  truthful,  from  the 
character  of  the  stat^'inent  or  from  his  demeanor  while  making  it,  tended  only  to 
strengthen  the  proof  of  his  guilt.  Kniekcrbocker  v.  People,  43  N.  Y.,  177;  Man- 
ilrai/an  r.  State,  •X\  Tex.,  480. 

On  the  other  lian<l,  its  application  very  frequently  defeated  the  proper  adminis- 
tration of  the  liiw  Ity  enabling  the  artful  criminal,  by  giving  a  reasonable,  or 
which  practically  amounted  to  the  same  thing,  a  plausible  account  of  the  posses- 
sion, to  cast  the  bunlen  of  proving  the  falsity  of  the  account  uiwn  the  prosecution, 
which,  ill  many  instances,  became  impossible.  3  Greenl.  Ev.,  32;  Jones  v.  State, 
30  Miss..  6.5;!;  Helot,  r.  State,  36  id.,  90;  Gracia  v.  State,  26  Tex., 209;  Ilnffhes  v. 
State,  8  Humph.,  75;  State  r.  Breirster,  7  Vt.,  118;  State  r.  Weston,  9  Conn., 527; 
State  V.  Groves,  72  N.  C,  482. 


!:i 


:•'! 


576 


AMERICAN  CRIMINAL  RErORTS. 


Although  mniiy  of  the  American  states  have  adlioretl  to  the  (lottriiiu  of  fiivcn- 
leaf  anil  the  earlier  cases,  yet  the  weiglit  of  authority  to  \»i  collectcrl  from  tlie 
recent  cases  bearing  on  tliis  subject  is  in  favor  of  the  rule,  in  our  opinion  tiie  cor- 
rect one,  wliich  is  briefly,  yet  entirely,  stated  by  the  court  in  Thompson  t\  Stule, 
4:!  Tex.,  208:  "  It  is  error  to  charge  that  mere  possession  of  i)roi)erty  recfiitly 
stolen,  unexplained,  is  prima  favk  evidence  of  guilt.  The  rule  is  that  the  jios- 
Bession  of  property  recently  stoli'n  is  evidence  against  the  accused  wiiidi,  iiku 
all  other  evidence,  is  to  be  taken  and  consi(U;red  by  the  jury  in  connection 
with  other  testimony  in  the  ca«e."  2  Hish.  Cri)n.  Proc.,  74U;  livij,  t\  Jmiih- 
Diiml,  9  Cox  Crim.  Cases,  405;  State,  v.,  Hoihje,  50  N.  II.,  510;  Conkiinylit  r. 
reoph,  55  111.,  204;  Peopk  r.  Chawbcrx,  18  Cal.,  ;iS2;  State  r.  Ilozatd,  12  .Minn., 
29:};  Yutcx  r.  State,  '.',7  Tex.,  202;  State  v.  Willhtms,  2  Jones  (N.  C),  194; 
People  V.  Ah  Ki,  20  Cal.,  177;  Slate  r.  Shaw,  4  Jones  (N.  C),  440;  Stale  r. 
lieUl,  20  Iowa,  418;  People  r.  Oitti/,  id  Cal.,  581;  People  v.  liodmuh,  44  id., 
5:58;  Stover  v.  People,  50  N.  Y.,  ^15.  In  the  hist  case,  the  former  decisions 
on  this  subject  in  New  York,  and  already  cited,  were  overruled,  and  the  coiut 
held:  "It  is  obvious  that  a  party  cannot,  as  a  matter  of  law,  bo  a(\judged  guilty 
of  larceny  upon  proof  that  property  has  been  stolen  and  recently  thereafter  found 
in  his  possession  in  the  absence  of  any  exi)lanation.  *  *  In  other  cases  juries 
have  bet.'n  iustruiited  that  this  proof  ca.sts  upon  the  iux;u.sed  the  burdc-n  of  showing 
how  he  acquired  possession,  and  if  he  failed  to  satisfy  them  that  he  did  so  inno- 
cently, it  was  their  duty  to  convict.  Such  instructions  are  erroneous.  It  is  for 
the  prosecution  to  prove  the  commission  of  the  crime  charged  by  the  at^cused,  uiul 
tlie  burden  of  doing  so  continues  during  the  entire  trial." 

There  is  another  class  of  cases  that  can  be  distinguishiid  from  those  already  citid, 
which  hold  it  to  be  error  for  the  court  to  cluu-ge  as  a  matter  of  law  that  the  recent 
possession  of  stolen  property  unexpUiined  is  prima  facie  evidence  of  guilt,  yet 
Bay  that  it  creates  a  presumption  of  fact  against  the  accused  which,  if  not  rebutted, 
wan-ants  the  jury  in  convicting. 

lliis  cliiss  of  cases  can  be  best  illustrated  Ijy  the  language  of  the  court  in  Kclhf 
V.  State,  20  Wi».,2:.n: 

"  If  within  a  short  time  after  the  theft,  the  stolen  property  wa«  found  in  jjosses. 
sion  of  the  prisoner,  the  burden  wa.s  on  him  to  show  how  he  came  by  it,  othcrwisi', 
he  might  bo  presumed  to  have  obtained  it  feloniously;  but  such  prcsuniptiim 
might  be  rebuttt'd  by  the  circumstances  proved;  that  it  was  a  presumption  of  fact, 
and  if  the  evidence  led  to  a  reasonable  doubt  whether  it  wiw  well  fouiHled,  that 
doubt  would  avail  in  favor  of  the  accused."  Blakeley  v.  State,  52  Ind.,  101 ;  Skile 
r.  Walker,  1  la.,  217;  Thomatt  v.  State,  i^  lax.,  G58;  Itarnen  r.  Stale,  id.,  98; 
Thompson  v.  Slate,  id.,  208;  Com.  v.  Itamlnll,  119  Mass.,  107;  Davis  r.  Slate,  jQ 
Miss.,  80;  Slate  v.  En,  10  Nov.,  227;  State  v.  lAinge,  59  Mo.,  418. 

While  many  coiuts  have,  in  our  judgment,  attached  too  great  weight  to  tho 
possession  of  property  recently  stolen,  as  evidence  of  guilt,  other  courts  have  gono 
t«o  far  m  the  opposite  direction,  holding  that  tho  jury  are  not  justified  in  draw- 
ing the  inference  of  guilt  from  evidence  only  of  the  unexplained  jxtssession  of  prop- 
erty recently  stolen.  People,  v.  Chambers,  18  Cal.,  ;i'82;  Yates  r.  State,  37  Tex., 
202;  People  v.  Xoregea,  48  Cal.,  12:3;  Stale  v.  Williams,  3  Nov.,  409. 

This  rule  also  infiinges  on  tho  exclusive  province  of  the  juiy  who  are  author- 
ized, and  in  many  ca-ses  ought  to  conclude  that  the  defendant  is  guilty,  when  the 
only  evidence  is  the  unexplained  possession  of  property  recently  stolen.While  the 


rino  of  fJivon- 
ctcd  from  the 
liiiiioii  till'  cor- 
ii/Mon  r.  Sliiti', 
jperty  recently 

that  the  jios- 
'<1  wiiieli,  liki) 

In  conneetioii 
Itvif,  t\  Imiiii- 
Conkurlijht  i\ 
nl,  12  .Minn., 
(N.    C),    l'J4; 

440;  Sttilc  V. 
tlinuh),  44  ill., 
riuor  deci.iion.s 

anil  the  conrt 
i\juil>,'e(l  jjnilty 
lereafter  found 
lier  ea.se.H  jurit's 
ili.'ii  of  whowiny 
lie  did  so  inno- 
eous.  It  i.<  for 
ic  accused,  uiul 

e  already  eit<'d, 
that  the  recent 
!  of  pniilt,  yet 
f  not  reltutted, 

court  in  A't//// 

)und  in  iiOJ^ses- 
y  it,  otherwisi', 
I  pri'.suniiition 
lujition  of  fact, 
[  fouinled,  that 
nd.,  lGl;^7«/e 
State,  id.,  9>i; 
ris  r.  Stute,  jO 

weight  to  tho 
urts  have  gono 
itified  in  draw- 
session  of  prop- 
Statc,  o7  Tex., 
)9. 

ho  are  author- 
uilty,  when  the 
olen.While  the 


DULLARD  c.  STATE. 


577 


rule  wo  havo  contended  for  a.<i  "onvct  haa  not  met  with  universal  favor  even  by 
the  lato  cases.  Foxtcr  i\  State,  :.;J  Jli.ss.,  (59*);  State  r.  Tunur,  Go  N.  C,  59-2; 
Comfort  V.  I'l-ople,  H  111.,  404;  ytl  .ve  think  it  is  supported  by  tlie  better  reiuson- 
in(^.  In  itH  application  it  leavo,  all  the  facts  to  be  determined  by  the  jury  with 
whom  from  tiie  policy,  reason  and  spirit  of  the  criminal  law  it  exclusively  belongs. 
We  havo  souyht  in  vain  to  discover  from  the  authorities  any  reason  or  justice  in 
the  rule  that  allows  the  court  to  draw  a  presumption  of  law  from  one  or  more 
facts  in  the  casi?,  and  then  strengthened  by  the  opuiion  of  the  court  to  apply  this 
presumption  to  the  other  facts  in  the  same  case.  We  think  the  court  is  actiiijjr 
upon  assumed  power  when  it  undertakes  to  say,  as  a  matter  of  law,  what  is  pnnia 
facie  evidence  of  guilt,  when  and  upon  whom  tho  burden  of  proof  shifts,  what  is 
a  surticient  or  reiusonablo  account  or  explanation,  and  what  is  not.  Tho  simpler 
rule,  and  the  one  by  far  more  calculated  to  insure  impartial  justice,  is  to  presume 
every  man  innocent  until  the  contrary  is  proven  beyond  a  reasonable  doubt,  and 
n.s  to  when  that  is,  if  left  to  the  jury,  will  never  bo  a  source  of  embarrasameut  to 
the  court,  or  to  the  administration  of  the  law. 


Blli.akd  vs.  State. 
(38  Tex.,  504.) 

Pkactice:    Jury  of  thirteen. 


^^^lore,  by  mistake,  thirteen  jurors  are  impaneled  and  render  a  verdict,  the 
verdict  will  be  set  awide. 

It  seems  that,  if  the  last  juror  sworn  on  a  jury  of  thuieen  could  be  pointed  out 
before  the  jury  retired,  he  might  be  dismissed  and  the  trial  proceed. 


Walkku,  J.  "We  need  notice  but  one  of  the  errors  assigned 
for  reversing  this  case. 

The  appellant  was  indicted  for  horse  stealing,  in  the  district 
court  of  Ellis  county,  and  tried  before  a  jury  of  thirteen  men, 
convicted,  and  adjudged  to  sutler  imprisonment  in  the  peniten- 
tiary for  the  term  of  ten  years.  This  is  certainly  a  very  novel 
irregularity  in  a  Texas  court.  Article  3007,  Pasch.  Dig.,  de- 
clares "  that  the  only  mode  of  trial  upon  issues  of  fact  in  the  dis- 
trict court  is  by  a  jury  of  tioelve  meti,  except  in  certain  cases 
otherwise  provided  for." 

Similar  cases  have  seldom  occurred,  but  where  they  have  oc- 
curred, the  courts  in  England  and  in  the  different  states  have 
expressed  a  diversity  of  opinion.    In  Mississippi,  a  verdict  of 
Vol.  1-37 


!'  1< 
i    'I 


:■     I 

:     I 


^Ifm 


573 


AMKUICAN  CRIMINAL  REPOIITS. 


thirteen  jurors  was  set  usido.  Wo/f  d  al.  v.  MuHln,  1  Hom-. 
80.  Ill  Tiltinau  et  al.  v.  AUlcs,  5  Siuoth.'s  »fc  Alarwli,  1578,  thu 
court  refusoil  to  allow  it  m  eriHtr,  that  the  verdict  wart  rt'iuicml 
]>y  thirteen  jurors,  but  Htate  that  if  it  luul  been  remlered  by  a  Il'^h 
number  tlian  twelve,  it  would  lie  void.  In  Ivuiitueky,  thu  conn 
lield  that  the  defendant  beiui?  present,  and  not  objcctiiijr  wliou 
the  jury  was  sworn,  couhl  not  maintain  it  n^  error  that  the  ver- 
diet  wart  rendered  by  thirteen  jurors.     5  M.  Mon.,  120. 

In  Jiouft  V.  Nc<il,  7  Minn.,  407,  the  court  held  the  verdict  void, 
if  excepted  to  in  the  court  below. 

The  En<^li8li  courts  liavc  allowed  the  last  juror  sworn  to  Itc 
discharged  from  the  panel,  and  the  trial  to  proceed,  where  tliu 
mistake  is  discovered  before  the  jury  retired  to  deliberate.  Jiut 
wc  think,  under  our  law,  there  is  no  room  for  the  courts  to  spec- 
ulate upon  such  irregularity.  If  the  fact  is  discovered  before 
the  verdict  is  rendered,  the  cause  should  be  withdrawn  from  the 
jury,  and  a  lawful  jury  impaneled  and  sworn  to  try  it;  or,  if 
the  last  juror  sworn  can  be  pointed  out,  ho  may  be  dit<misfiLMl 
from  the  ])anel,and  the  trial  proceed  before  a  legally  constituted 
jury.  But  if  more  jurors  than  the  legal  number  are  permitted 
to  deliberate  on  the  verdict,  the  verdict  should  be  set  aside  and 
a  new  trial  awarded. 

The  judgment  in  this  case  is  reversed  and  the  cause  remanded. 

licverscd  and  renuinded. 


Lavin  vs.  People. 
(69  111.,  303.) 

PnACTicE:    Examimithn  of  juror  on  voire  dire. 

On  a  trial  for  an  unlawful  sale  of  intoxicating  liquor,  tho  rcspondnnt  ha.s  a 
rifflit  to  ask  tho  jurors  on  tl»'ir  voire  dire  to  enable  him  to  exorcise  liLs  rif,'lit 
of  pcronjptory  challenge,  whether  they  are  luonibers  of  a  touiperance  soci- 
ety or  have  contiibuted  money  in  aid  of  liquor  pre.secutious. 


Craig,  'i .    At  the  October  term  of  the  criminal  court  of  Cook 
county,  an   indictmer*.  was  found  by  the  grand  jury,  against 


LAVIN  V.  PEOPLE. 


679 


Micliiu'l  Lrtvin,  for  solliii,:,' intoxicating  Hf|uor8  to  a  certain  per- 
son whit  was  in  the  lial»it  of  <,'etting  intoxicated. 

At  the  January  trrni,  ls7;{,  of  tlie  conrt,  a  trial  was  liad  bo- 
fore  a  jury,  and  the  defendant  found  guilty. 

In  t^eh-ctin:^  "'.I'lUT  to  try  tlic  causje  in  tlie  criminal  court,  tho 
defendant  propounded  to  each  juror  called,  the  foUowiiifr  (jucs- 
tioiis:  /'V/'.y^  Are  y(»u  a  nieniher  of  a  temperance  Hocioty. 
Sivouif.  Are  yon  connected  with  any  society  or  league  organized 
for  the  )»tiri)ose  of  prf»seeuting  a  certain  class  of  people,  under 
what  is  called  the  new  temperance  law  of  the  state;  or  liavc  you 
ever  contrihuted  any  funds  for  sjich  a  iturpose? 

The  peojde,  hy  the  state's  attorney,  objected  to  the  jurors  an- 
Bwering  the  questions,  and  the  court  sustained  the  object. on,  and 
would  not  i)ermit  the  jurors  to  answer,  and  to  this  ruling  of  the 
court  defendant  exceptetl. 

It  is  the  ])olicy  of  our  laws  to  afl'ord  each  and  every  person 
who  nnvy  have  a  cause  for  trial  in  our  courts,  a  fair  and  impar- 
tial  trial.  This  can  only  be  done  l>y  having  the  mind  of  each 
juror  who  sits  to  ])ass  judgment  upon  the  life,  liberty  or  rights  of 
a  suitor  entirely  free  from  bias  or  i)rejudice.  In  order  to  deter- 
mine whether  the  person  who  may  be  called  as  a  juror  possesses 
the  necessary  <iualitications,  whether  he  has  prejudged  the  case, 
whether  his  mind  is  free  from  prejudice  or  bias,  the  suitor  lias  tho 
right  to  ask  him  questions,  the  answer  to  whicli  may  tend  tosliow 
lie  may  be  challenged  for  cause,  or  disclose  a  state  of  facts  from 
which  thecnitor  may  see  proper  to  reject  such  juror  peremptor- 

In  tho  case  of  the  Commonwealth  i\  E^jan  ct  al.,  4  Gray,  IS, 
•which  was  an  indictment  for  being  common  sellers  of  spirituous 
liquors,  Egan,  before  his  cause  was  opened  to  the  jury,  iuipiired 
if  any  member  of  the  panel  belonged  to  the  Carson  League,  and 
one  answered  that  he  was  a  member  of  said  league;  tliat,  as  he 
nnderstood  it,  the  object  of  the  society  was  to  prosecute  persons 
for  violation  of  the  liquor  law,  so  called;  that  assessments  were 
made  upon  members  for  the  purpose  of  carrying  out  the  objects 
of  the  society;  that  they  had  paid  one  assessment,  and  expected 
to  pay  more;  that  there  was  nothing  in  the  existence  of  this 
membership  to  prevent  his  giving  a  fair  and  impartial  verdict 
according  to  the  evidence.  The  defendant  objected  to  the  jury- 
man, but  the  court  overruled  the  objection,  and  allowed  him  to 


'  I : !  ■'fl^fi 


P 


Ifl 


m^ 


5S0 


AMERICAN  CRIMINAL  REPORTS. 


l!,'^. 


remain  on  the  panel.  The  ai^pelUxte  court,  in  deciding  the  case, 
said:  "  "We  deem  it  to  he  onr  duty  to  say,  that,  in  onrjudc. 
ment,  the  members  of  any  association  of  men  comhining  fortlie 
purjiose  of  enforcing  or  withstanding  the  execution  of  a  partic- 
ular law,  and  binding  themselves  to  contribute  money  for  sncli 
purpose,  cannot  be  held  to  be  indifierent,  and  therefoi-e  ouglit 
not  to  be  ])ermitted  to  sit  as  jurors  in  the  trial  of  the  causae  in 
which  the  question  is,  whether  the  defendant  shall  be  found  giiiltv 
of  violating  that  law."  In  case  of  T/ie  Pcoj)le  v.  IivytN  d  <?/., 
6  Cal.,  347,  the  sujireme  court  of  California,  on  a  case  analogous. 
held  substantially  as  did  the  court  in  Massachusetts. 

We  are  not,  howevti",  in  this  case,  called  upon  to  decide 
whether  an  affirmative  answer  to  the  questions  propounded  to  tlic 
jurors  would  have  been  ground  of  challenge  for  cause.  The 
qxiestions  were  asked  with  a  view  to  call  out  facts  upon  which  to 
base  a  peremptory  challenge,  and  for  this  purpose  they  were 
proper,  and  should  have  been  answered. 

That  the  refusal  of  the  court  to  permit  the  questions  asked  to 
be  answered  was  error,  for  which  the  judgment  should  be  re- 
versed, there  can  be  no  doubt,  lirooha  v.  Bvuyn,  35  111.,  3t)0; 
Bissel  V.  Jii/an,  23  id.,  5C>(). 

It  can  not  be  said  the  cause  was  tried  by  a  jury,  such  as  is  con- 
templated by  law. 

The  other  questions  raised  in  the  case  are  settled  by  the  case 
of  McCntc/icon  v.  The  Peoj^Ie,  ante,  471. 

For  the  error  indicated,  the  judgment  will  be  rever.«ed  and  tlic 
cause  remanded.  Jmhjtnent  /•ti\ff<i(I. 


Static  i\s.  Smitu. 

(75  N.  C,  :50G.) 

Pkactice  :    rrofccHtUuj  officer. 


It  is  error  for  tho  court  to  allow  a  pro^j(.'(.utin<r  otlicor  to  use  this  lanpiiajii*  in  ml- 
dvcssinp  the  jury:  "  The  defomlant  wa.s  such  a  scountln-l  that  ln'  was  com- 
pelled to  move  his  trial  from  Jonea  county  to  a  county  where  he  wiis  not 
known." 

It  is  error  for  the  court  Lo  allow  a  prosecuting  officer  to  use  this  lanpuaffe  in  ail- 
dressing  the  juiy :    "Tiiebold  and  brazen-faced  niscal  hiul  the  iiupudcnco 


ding  the  case, 
,  in  our  jnclg. 
bining  fortlie 
n  of  a  partie- 
>ney  for  siicli 
lerefore  uiijrlit 
f  tlie  caut^e  in 
e  fuuiul  giiiltj 
Jit'(jtf<  it  al, 
a!?e  aiialoirou?, 
ts. 

jon  to  decide 
)oiintled  to  tlie 
r  cause.  The 
ipon  wliioli  to 
>8e  tliey  were 

itions  asked  to 
Bhonld  be  re- 
;,  35  111.,  ai).-); 

such  as  is  con- 
ed by  the  ca.-c 
versed  and  the 


s  lanjfuujio  in  ad- 
tliat  111.'  wiis  coiu- 
rhtjre  he  wiis  not 

« liinpuafrc  in  ml- 
ul  the  iiupudoueo 


'"m 


STATE  V.  SMITH. 


581 


to  wi-ite  me  a  note  yesterday,  bcgpng  me  not  prosecute  him,  and  threaten- 
inj?  me  if  I  did,  he  would  get  the  legislature  to  imiieach  me." 
It  is  the  duty  of  the  court  to  protect  the  prisoner  from  unreasonable  and  unfair 
statements  and  ai'yuments. 

Byxum,  J.  It  is  necessary  to  notice  only  one  of  the  defend- 
ant's exceptions,  as  upon  that  he  is  entitled  to  a  new  trial  The 
solicitor,  prosecuting  in  behalf  of  the  state,  in  addressing  the 
jury,  was  allowed  by  the  court  to  use  the  following  language: 
•'The  defendant  was  sucli  a  scoundrel  that  he  was  compelled  to 
move  his  trial  from  Jones  county  to  a  county  where  he  was  not 
known."  And,  again:  "  The  bold,  brazen-faced  rascal  had  the 
impudence  to  write  me  a  note  yesterday,  begging  me  not  to  pros- 
ecute him,  and  threatening  me  if  I  did,  he  would  get  the  legis- 
lature to  impeach  me." 

The  i)nrT  ise  and  natural  effect  of  Guch  language  was  to  create 
a  prejudice  against  the  defendant,  not  arising  out  of  any  legal 
evidence  before  them;  for  the  jury  were  precluded  from  inquiry 
into  the  causes  or  motives  for  moving  the  trial,  and  even  from 
the  knowledge  whetiier  the  trial  was  moved  by  the  state  or  the 
defendant.  So  in  resj)ect  of  the  letter,  alleged  to  have  been  re- 
ceived from  the  def  ;ndant,  and  the  epithets  predicated  upon  it; 
it  was  not  in  evidence,  and  could  not  be,  yet  its  alleged  contents 
were  allowed  to  go  to  the  jury  with  all  the  force  and  effect  of 
coni]»ctent  testimony.  Such  a  letter  constituted  a  new  and  dis- 
tinct offense,  and  was  the  proper  subject  of  another  indictment 
and  jtrosccution.  These  charges  and  invectives  were  not  only 
allowed  to  go  to  the  jury,  but  were  unexplained  and  uncorrected 
by  his  honor  in  his  charge  to  the  jury.  In  Dennis  v.  Haywood, 
G3  X.  C,  53,  the  course  here  pursued  by  the  solicitor  is  strongly 
reprobated.  "  Suppose,"  said  the  court,  "  a  defendant  is  to  be 
tried  for  his  life,  und  to  escape  unreasonable  prejudices  in  one 
county  he  removes  his  trial  to  another,  the  fact  that  he  does  so 
may  be  used  to  excite  the  prejudice  that  he  is  endeavoring  to 
escape  justice,  and  thus  he  would  escape  the  prejudices  of  one 
community  to  find  them  intensified  in  another.  Would  the 
court  allow  the  fact  to  be  given  in  evidence  or  commented  on  by 
the  counsel?  Certainly  not."  So  in  Jenkins  v.  The  jV.  C.  Ore 
Di'cmmj  Co.,  G5  N.  C,  503,  it  is  said:  "Where  the  counsel 
grossly  abuses  his  ])rivilege,  to  the  manifest  prejudice  of  the  op- 
posite party,  it  is  the  dnti/  of  the  judge  to  stop  him  there  and 


582 


AMERICAN  CRIMINAL  REPORTS. 


then.  If  he  fails  to  do  so,  and  the  impropriety  is  gross,  it  i» 
good  ground  for  a  new  trial."  And  in  the  State  v.  Willunni-i, 
65  X.  C,  505,  a  new  trial  was  granted  in  a  case  where  laiiguaifo 
less  harsh  and  violent  was  allowed  by  the  court;  and  it  wa.s  there 
said  that  it  was  the  duty  of  the  court  to  interpose  for  the  pro- 
tection of  witnesses  and  parties,  especially  in  criniiiial  cases, 
where  the  state  is  prosecuting  one  of  its  citizens.  The  defendant 
was  arraigned  at  the  bar  of  the  court  mute  and  h^^lpless,  without 
raising  an  unseemly  controversy  with  the  solicitor.  The  court 
is  his  constituted  shield  against  all  vituperation  and  abuse,  and 
more  especially  when  it  is  predicated  upon  alleged  facts  nut  iu 
evidence,  or  admissible  in  evidence. 

There  is  error. 

Per  Curiam:  Venire  do  novo. 


\f  i, 


Ferguson  vs.  State. 

(49  Inrl.,  33.) 

Practice:    Provocation  to  reduce  homicide  to  manshiighter. 


'■A 


On  a  criminal  trial  for  honiiuiile,  it  is  tn*or  for  the  court  to  allow  counsel  h\ 
the  prosecution  in  iuKlressiny  the  jury  to  conunent  on  the  fi-e([Ufn(.y  of 
that  crime  in  the  connuunity,  and  say  to  the  jury  that  it  is  clue  to  the 
lax  administnition  of  the  law,  and  urge  them  to  make  an  example  of  tlu' 
respondent. 

It  is  error  to  charge  a  juiy  on  a  trial  for  murder  that  "  to  reduce  a  honiiL-iilo 
upon  provocation,  it  is  essential  tliat  the  fatal  l)low  shall  liave  hotii  givi'ii 
immediately  upon  the  provocation  given ;  for  if  there  be  time  sufficient  lor  the 
passion  to  subside,  and  the  person  provoked  kill  the  other,  this  will  be  mur- 
der and  not  nuuislaughter." 

PETTrr,  J.  The  appellant  was  indicted  for  murder  in  the  first 
degree,  for  killing  John  Stillhanimer,  and  was  convicted  of  mur- 
der in  the  second  degree,  and  sentenced  to  the  penitentiary  fur 
life.  A  bill  of  exceptions  shows  the  following  facts,  which  were 
also  assigned  as  a  cause  for  a  new  trial: 

"  And  during  the  progress  of  the  argument  of  counsel,  counsel 
for  the  state  commented  on  the  frequent  occurrence  of  murder 
in  the  community,  and  the  formation  of  vigilance  committees 


i;j',!j 


is  groM,  it  is 
!  V.  Winiaii/s, 
lere  language 
tl  it  was  there 
;  for  the  j)ro- 
riiniiial  cases, 
riie  defendant 
pless,  witlioiit 
The  court 
nd  abuse,  and 
d  facts  not  iu 


ire  de  novo. 


tughter. 

allow  counsel  foi 
tho  fi-t'(iueiii.y  of 
.  it  is  clue  to  tin- 
tl  exaiui)lt!  of  till' 

■tluco  a  lioiuiciili^ 
I  liave  been  jrivi'u 
G  sufKcii'iit  for  tho 
tills  will  Ijt'  mur- 


or  in  tlic  first 
icted  of  inur- 
nitcntiary  fur 
s,  which  were 

insel,  counsel 
ice  of  murder 

B  conunittecb 


FERGUSON  f.  STATE. 


583 


and  mobs,  and  that  the  same  was  '  caused  by '  the  laxity  of  the 
administration  of  the  laws,  and  stating  to  the  jury  that  they 
should  make  an  example  of  the  defendant.  And  the  defendant, 
l»y  his  counsel,  asked  the  court  to  restrain  the  counsel,  and 
objected  to  said  comments,  because  there  was  no  evidence  of  such 
matters  before  the  jury;  but  the  court  overruled  said  motion, 
and  remarked  in  the  liearing  and  presence  cf  the  jury,  that  such 
matters  were  proper  to  be  commented  upon,  to  which  the  defend- 
ant at  the  proper  time  excepted,  and  still  excepts." 

The  comments  and  arguments  of  counsel  and  the  remarks  of 
tlie  court  during  a  trial  may  be  within  the  discretion  of  the 
judge  presiding,  but  it  is  a  judicial  discretion,  and  if  improperly 
used  to  the  injury  of  either  party,  it  may  and  ought  to  be  revised 
and  controlled  by  this  court.  If  it  was  proper  to  present  these 
things  to  and  comment  on  them  before  the  jury,  it  was  proper 
for  the  jury  to  consider  them  in  making  up  their  verdict.  These 
things  were  outside  of  the  record  and  the  evidence,  and  were  cal- 
culated to  prejudice  the  rights  of  the  defendant.  It  was  tanta- 
mount to  saying  to  the  jury,  murders  have  been  committed, 
viirilance  coinniittees  formed,  and  mobs  assembled  in  this  countv, 
and  you  may  take  these  matters  into  consideration  in  making 
vour  verdict;  and  as  you  have  got  a  chance  now,  you  may  make 
an  examjde  of  ilefendant.  The  jury  may  have  come  to  a  differ- 
ent conclusion  from  what  they  would,  if  the  court  had  quietly 
rebuked  the  counsel,  and  told  him  to  keep  his  argument  within 
the  facts  and  evidence  in  the  case.  The  action  of  the  court  was 
an  error,  for  which,  if  for  no  other  cause,  the  judg..  ent  must  be 
reversed. 

The  court  gave  the  following  instruction  to  the  jury: 

"  To  reduce  a  homicide  upon  provocation,  it  is  essential  that 
the  fatal  blow  shall  have  been  given  immediately  upon  the  prov- 
ocation <Mven;  for  if  there  be  time  sufficient  for  the  passion  to 
subside,  and  the  person  provoked  kill  the  other,  this  will  be 
murder,  and  not  manslaughter." 

No  authority  is  cited,  and  we  think  none  can  be  found  to  sus- 
tain this  instruction,  except  liick.  Crim.  Pr.,  280,  in  this  state, 
and  the  authority  he  cites  does  not  sustain  him.  The  authori- 
ties, elemental  and  decided,  are  against  the  validity  of  this  in- 
struction. 

Zell's  Eucyclopedia:  "  Immediately.  Without  the  interventiou 


^  .'  ■   A' 


5S4 


AMERICAN  CRIMINAL  REPORTS. 


of  any  other  cause  or  event.  At  the  present  time,  on  the  mo- 
nient;  directly;  quickly;  at  once;  inatatiter.''^ 

Burrill's  Law  ]>ict :  "  Inunetliate.  In  old  English  law,  im- 
mediately; directly;  without  anything  intermediate." 

When  a  great  wrong  or  injury  has  been  done  to  or  inflicted  on 
a  man  which  has  excited  his  passion,  he  is  not  required  to  pun- 
ish or  resent  it  at  once,  but  may  have  such  time  as  is  neceesarv 
for  his  passion  to  cool  oti";  and  his  physical  and  mental  organi- 
zation should  be  taken  into  consideration  in  such  a  case. 

All  elemental  authority  and  adjudicated  cases  agree  that  in 
such  case  time  must  be  given  for  the  passion  of  the  injured  per- 
son to  become  calm,  and  many  .authorities  say  that  the  (]uesti(>n 
ought  to  be  submitted  to  the  jury  as  to  whether  the  passion  of 
the  injured  person  had  been  actually  quieted.  We  cite,  with- 
out quoting-'  *he  following  authorities:  Ex  parte  Moore,  30  Ind., 
197;  1  Hale  P.  C,  4.>3;  T/te  State  v.  IlUdrct/,,  9  Ired.,  420; 
TJic  State  i\Yarhroa(jh,  1  Hawks,  78;  Commonwealth  v.  Woffster, 
5  Cush.,  295;  IVie  2*eoj>Ie  v.  Johnson,  1  Parker,  C.  C,  291; 
Foster's  Cr.  Cas.,  290. 

The  instruction  given  was  erroneous,  and  the  case  must  be  re- 
versed for  this  as  well  as  for  a  former  Uijticed  error. 

The  judgment  is  reversed;  and  the  clerk  is  directed  to  issue 
the  proper  notice  for  the  return  of  the  prisoner. 


NoTK.  The  following  itccount  whicli  liOrd  Campbell  fpvi's  of  the  behavior  of 
the  judye  iiiul  the  jiro.'-ecutmf^  counsel  on  the  triul  of  Sir  Walter  H.ilei<,'Ii  wlieu 
contnusted  with  the  rulinys  in  the  Ciuse  in  the  text,  illuMtriit>.'.s  very  striklii'rly  tin,' 
profjTi-estj  that  luis  been  unide  in  the  eondnet  of  criiuiniil  trials:  "The  nihjijs's  of 
Chief  Ju.stiet.'  roiihiini  lit  this  trial  would  sreni  very  striui;,'e  in  our  day,  liut  iji 
his  tJiey  caused  no  suriirise  nor  censure.  In  tlie  first  place  he  tli'cided,  ii{,'iuniit  iiii 
able  arf,'iiuient  from  the  prisoner,  who  conducted  his  own  defense,  that,  alt.liou^rii 
the  charge  was  high  treason,  it  was  sufficiently  supported  by  the  uncorroborated 
evidence  of  a  single  witness,  luul,  secondly,  that  tliere  was  no  occasion  for  this 
witness  to  be  produced  in  court,  or  swoni,  and  that  a  written  confession  Ity  him, 
accusing  himself  and  implicating  the  prisoner,  was  enough  to  satisfy  all  the  n- 
quisitions  of  connnon  and  statute  law  on  the  subji'ct.  Raleigh  still  urged  that 
Lord  Cobhani.  his  solo  accuser,  should  bo  confronted  with  him.  I'oithitm,  C.  J. 
"Tills  thing  cannot  be  granted,  for  then  a  numberof  treasons  should  flourish;  tJie 
accuser  might  be  drawn  in  practice  whilst  lie  is  in  iH-n-son."  liahUih.  "  The  com- 
mon ti-ial  iji  Kngliuid  is  by  jury  and  witnesses."  rvjiJuim,  C.  J.  "  If  throe 
conspire  a  treason,  and  they  all  confess  it,  here  is  never  a  witness,  and  yet  they 
are  condemned."  EuUiijh.  "I  know  not  lx)w  you  conceive  the  law."  7V//j/whi, 
C.  t7.   "  Nay,  we  do  uot  conceive  the  law,  but  we  know  the  law."  Raleiijh.  "  Tlio 


,  on  the  mo- 

lisli  law,  im- 

1"  inflicted  on 
iiired  to  jnui- 
'■>  is  iiecet^sary 
ental  or<,'ani- 
case. 

greo  tliat  in 
injured  pcr- 
the  (juestiou 
ie  passion  of 
e  cite,  with- 
oo/v,  30  Ind., 
>  Iml.,  420; 

t/l  V.  Wchfc)', 

,  C.C,  2'Jl; 
'i  must  bo  re- 
cted  to  issue 


tlio  lx'lin\i(ir  of 
r  l{.tli'i|4:li  wlini 
■y  stnkiii','iy  tlic 
"Tlif  niiuijs'K  of 
our  iliiy,  but  in 

(It'll,  il{,'IUllPt  iUl 

,  tluit,  altliou^'h 
uncom.ibornt<'il 
iMMision  for  tiiis 
ifi'ssion  by  liini, 
itisfy  Sill  till'  n  - 
still  urged  tiiat 
l'(>j)htim,  ('.  J. 
itkl  flourisli;  tJio 
'///.  "  The  eoiu- 
./.  "  If  tiu-eo 
ss,  luid  yet  tiicy 
law."  I'ojjlutm, 
RaUiyh.  "Tlio 


FEIWUSON  V.  STATE. 


585 


wisdom  of  the  law  of  God  is  absolute  and  porfoct.  llocfae  et  rives,  etc.  Indeed 
where  the  witness  is  not  to  Ije  had  conveniently,  I  agi'oe  with  you;  but  here  he 
may;  he  is  alive,  and  under  this  root.  Susannah  had  been  condemned  if  Daniel 
had  not  cried  out,  '  Will  you  condemn  an  innocent  Israelite  without  examination 
or  knowledge  of  the  tiiitli  ?  '  Uemember  it  is  absolutely  the  commandment  of 
God:  '  If  a  false  witness  rise  uj),  you  shall  cause  him  to  be  brought  before  the 
judj^es;  if  he  be  found  false  he  shall  have  the  i)unishm(>nt  that  the  accused  should 
have  had.'  It  is  vi-ry  eiisy  for  my  lord  to  accuse  me,  and  it  may  bo  a  means  to 
excuse  himself."  I'ophim,  C.J.  "There  nmst  not  such  a  yap  be  opened  for 
the  desti-uction  of  the  kiny  as  tliere  would  be  if  we  shoulil  grant  tliis.  You  plead 
hard  for  yourself,  but  the  laws  plead  hard  for  the  kmy,"  liah.iijh  :  "The  lung 
de>'res  nothin<r  but  the  knowledge  of  the  truth,  and  would  have  no  advantage 
taken  '^j  severity  of  the'  law.  If  ever  we  had  a  gracious  Icing,  now  we  have.  I 
hope  as  he  is,  so  are  his  ministers.  If  there  bo  a  trial  in  an  action  for  a  matter 
but  of  live  marks  value,  a  witness  must  be  producetl  and  sworn.  Good,  my  lord, 
let  my  accjstn'  come  face  to  face,  and  s(;e  if  he  will  call  God  to  witness  for  the 
tiiith  of  what  he  has  alleged  apiiust  me."    pDjiham,  C.  J.    "  You  have  no  law 

for  it You  have  no  just  matter  of  comi)laiut  that  you  had  not  your  accuser 

come  face  to  face;  for  such  an  one  is  easily  brought  to  retract  when  he  seeth  there 
is  no  hope  of  his  own  life.  It  is  ilangcrous  that  any  traitors  should  have  access 
to  or  conference  with  one  anotiier;  when  they  see  themselves  nuist  die,  they  will 
think  it' best  to  havn  their  fellow  live,  that  he  may  connnit  the  Uke  treason  again, 
and  so  in  some  sort  seek  revenge."    JJren  of  the  Chief  Jiislici's,  vol.  1,  p.  228. 

His,  Coke's,  lii-st  app'.'arance  as  pubhc  prosecutor  in  the  new  reign  was  on 
tlie  triiJ,  before  a  special  commission  at  Winchester,  of  Sir  Walter  Raleigh, 
charged  with  high  treason,  by  ent(.'ring  into  a  plot  to  put  the  Lady  Arabella  Stu- 
art on  the  throne;  and  lu're,  I  am  sorry  to  say,  that,  by  his  brutal  conduct  to  the 
accused,  he  brought  ixnnnanent  disgrace  upon  himself  and  uiwn  the  English  bar. 
He  must  have  been  aware  that,  notwithstanding  the  mysterious  and  suspicious 
circumstances  which  surrounded  this  atVair,  he  had  no  suthcient  case  against  the 
prisoner,  I'ven  by  written  depositions  a^id  according  to  the  loose  notions  of  en- 
dence  then  subsisting;  yet  Iw  addressed  the  jury,  in  his  opening,  as  if  he  were 
scandalously  ill  used  by  any  defens(>  being  attempted.  While  he  was  detiiiling 
till.'  charge,  which  he  knew  could  not  be  established,  of  an  hitentionto  destroy  the 
king  and  his  children,  at  last  th(>  object  of  his  cahnnny  interposed,  and  the  fol- 
lowing dialogue  passed  between  them:  h'olcij/h.  "You  tell  me  news  I  never 
heard  of."  Atlonici/  (Icncnd.  "Oh,  sir,  do  I?  I  will  prove  you  the  notoriest 
traitor  that  ever  held  up  his  head  at  the  bar  of  any  court."  li.  "YourNvords 
c;)r.not  condemn  me;  my  imiocency  is  my  defense.  Prove  one  of  these  things 
wherewith  you  have  charged  me,  and  I  will  confess  the  whole  indictment,  and 
tliat  I  am  the  hon-iblest  traitor  that  ever  lived,  and  worthy  to  be  cracitied  with  a, 
thousand  thousand  torments."  .1.  (.'.  "  Nay,  I  would  prove  all;  thou  art  a  mon- 
ster; thou  hast  an  English  face,  Ijut  a  Spanish  heart."  1{.  "  Let  me  answer  for 
myself."  yl.  r;.  "Thou  shalt  not."  7f.  "  It  concemeth  my  life."  J.  «.  "Oh, 
do  I  touch  you?" 

The  proofless  nairativo  having  proceeded,  Raleigh  again  broke  out  with  the 
exclamation:  "  You  tell  me  «<'(ra,  Mr.  Attorney!"  and  thus  the  altercation  waa 
renewed.  A.  G.  "Oh,  sir,  I  am  the  more  large  because  I  know  with  whom  I 
deal;  for  we  have  to  deal  to-day  wth  a  titan  of  wii.    I  will  teach  you  before  I 


^^!        TT 


6S6 


AMERICAN  CRIMINAL  REPORTS. 


have  done."  7?.  "  I  will  wiish  my  hands  of  the  indictment  and  die  a  true  man 
to  the  kin?,'."  A.  O.  "  You  are  the  absolutcHt  traitor  that  ever  was."  1{.  "Your 
phrases  will  not  prove  it."  A.  G.  {in  a  tone  of  assumed  raininess  and  tenderness) 
"  You,  my  masti'rrt  of  the  jury,  respect  not  the  wickedness  and  hatred  of  the 
man;  respect  his  cause;  if  In;  be  (fuilty,  1  know  you  will  have  care  of  it,  for  tlio 
presei-vation  of  the  kiiij^,  the  continuation  of  the  Gospel  authorized,  and  the  <,'00(l 
of  us  all."  ]{.  "  I  do  not  yet  ht.'ar  that  you  have  oll'ered  one  word  of  pi"Oof  ayainst 
me.  If  my  Lord  Cohham  be  a  traitor,  what  is  that  to  me?"  A.G.  "All  that 
he  did  was  by  thy  instipition,  thou  vijv^r;  for  I  thou  thee,  thou  traitor." 

The  depositions  Ijcinj,'  read,  which  did  not  by  iuiy  means  make  out  the  prison- 
oner's  complicity  in  the  plot,  he  observed:  "  You  try  me  by  the  Spanish  in(iuisi- 
tion,  if  you  proccc-d  only  by  circumstances,  without  two  witnesses."  A.G.  "  This 
is  a  treawnablo  speech."  h'.  "I  ajiiMjal  to  God  and  the  kiny  on  this  point, 
whether  Cobham's  iuxusation  is  sutUcient  to  condemn  meV"  .1.  G.  "The  Idny's 
safety  and  your  cleariufy  cannot  ayree.  I  protest  before  God  I  never  knew  a  dear- 
er treason.  Go  to,  1  lay  thee  upon  thy  back  for  the  coufidentest  traitor  that  ever 
csime  at  a  bar." 

At  liust,  all  present  were  so  much  shocked  that  the  Earl  of  Salisl>\ny,  himself 
one  of  the  commissioners,  rebuked  tlw  attorney  general,  saymg,  "Be  not  so  im- 
patient, good  Mr.  Attorney,  give  him  leave  to  sjK'ak." 

A,  G.  "If  I  may  not  be  patiently  heard,  you  will  encourage  traitoi"s  and  dis- 
courage us.    I  am  the  king's  sworn  servant,  and  must  speak." 

The  report*^  relates  that  "  here  Mr.  Attorney  sat  down  in  a  chafe,  and  would 
speak  no  more,  until  the  commissioner  urged  and  entreattnl  hiui.  After  nuidx 
udo  he  went  on.  and  niiMle  a  long  reptdition  of  all  the  evi<lence,  and  thus  a(,'aiii 
addressing  Sir  Walt<'r:  "  'J'iiou  art  the  most  vile  and  execrable  traitor  that  ever 
lived.  I  want  words  to  express  thy  viperous  ti*ea.sons.'  "  Liees  of  the  Chief  Jufi- 
tices,  vol.  I,  p.  I5G4. 


..•*«-: 


Goi.DKN  VS.  State. 

(49  Ind.,  424.) 

I'nosKCUTiNO  Officeh:    Corrupt  agreement. 

An  agreement  with  a  prosecuting  oflicer  that  if  respondent  will  pleatl  guilty 
to  an  information,  respondent  shall  not  be  prosccutt'd  on  another  infonua- 
tion  then  pending  fur  a  like  offense,  is  a  coniipt  agreement,  and  entitles 
the  respondent  to  no  indulgence  or  relief. 


BiDni.K,  J.  I'rosecution  l)y  the  state  acjiiinst  the  appelliint, 
by  affidavit  and  iuforination,  for  selling  intoxicating  li(iuor  to  a 
minor. 

Motion  to  quash  overruled;  exception;  plea;  guilty;  fine. 

The  appellant  afterward  appeared  in  open  court  and  filed  the 
following  afildavit: 


die  a  true  man 
'  li.  "Your 
find  U'uiicnivtis) 
liiitred  of  tlio 
re  of  it,  for  tlio 
1,  aiul  tile  {.'ood 
of  in-Qoi  u^'iiinst 
.('.  "Ail  tluit 
itor." 

out  tliu  prison- 

spiuiisli  inciuisi- 

A.G.  "Tiiis 

on  tills  point, 

"Tlielvin;,''.s 

r  Ifiiow  a  ult'ar- 

raitor  tliat  ever 

lisliury,  iiiniself 
'  Be  not  so  im- 

raitoi-s  and  dis- 

uife,  and  would 
1.  After  niudi 
iind  tlius  a^iiiu 
raitor  tliat  evfr 
f  the  Chuf  Jua- 


Jl  l)]eml  piiilty 
lotlier  iiifornia- 
dt,  and  entitle:; 


B  appelliiiit, 
I  li(|Uor  to  a 

ty;  fine. 
,ik1  filed  the 


GOLDEN  r.  STATE. 


687 


«  Elza  Golden,  being  duly  sworn,  upon  oath  says,  that  he  is 
the  defendant  in  the  above  entitled  cause;  that  on  the  25th  day 
of  April,  1874,  one  John  M.  Vanfieet,  who  was  then  and  there 
deputy  prosecuting  attorney  for  AVesley  C.  Glasgow,  the  prose- 
cuting attorney  of  the  thirty-foi;rth  judicial  circuit  of  Indiana, 
of,  in,  and  for  the  township  of  Concord,  Elkliart  county,  Indi- 
ana, the  same  being  within  said  thirty-fourtli  judicial  circuit,  filed 
in  the  office  of  the  clerk  of  this  court  an  affidavit  and  informa- 
tion charging  tliis  defendant  with  having  unla\v;fully  sold,  bartered 
and  given  to  one  Charles  E.  Jcssup,  a  minor  under  the  age  of 
twenty-one  years,  one  glass  of  intoxicating  liipior,  to  be  drank 
at,  and  in  the  house  where  sold,  in  violation  of  law,  and  which 
said  affidavit  and  information  are  attached  hereto  and  made  a 
part  hereof,  and  marked  "A"  and  "B"  respectively;  that  a 
warrant  was  duly  issued  on  said  affid.avit  and  information,  on 
paid  day,  by  the  clerk  of  this  court,  and  duly  served  on  this  de- 
fendant by  John  "W.  Egbert,  sheritf  of  this  county  and  of  this 
court,  and  l)y  means  of  which  this  defendant  was  brought  before 
this  court  under  arrest,  and  compelled  to  give  bail  for  his  ap- 
pearance herein  from  day  to  day;  that  said  cause  was  regularly 
placed  on  the  trial  docket  of  this  court  83;  that  while  so  on  the 
docket  of  said  court  and  pending  herein,  to  wit:  on  the  Gth  day 
of  May,  1874,  the  said  John  M.  Vanfleet,  who  was  then  and  there 
acting  as  an  oflicer  of  this  court,  and  recognized  as  such  by  the 
court,  and  permitted  to  prosecute  the  pleas  of  the  state  in  said 
cause,  in  said  court  by  the  judge  of  said  court,  stated  and  repre- 
sented, aiul  affirmed  to  this  affiant,  that  if  affiant  would  plead 
guilty  in  said  cause,  the  fine  should  only  be  ten  dollars  and  costs, 
and  that  he,  the  said  Vanfleet,  would  dismiss  and  enter  a  nolle 
2^roseqni  in  other  similar  prosecutions  then  pending  in  said  court 
against  affiant  for  another  alleged  violation  of  the  liquor  law, 
viz.:  cause  84  on  the  criminal  docket  of  this  court,  and  also  dis- 
miss another  similar  cause  against  Sylvester  W.  Shumard,  then 
pending  in  said  court,  viz.:  cause  numbered  85  on  the  criminal 
docket  of  this  court;  and  said  Vanfleet  further  represented  then 
and  there  to  afliant,  that  such  plea  of  guilty  in  said  cause  would 
not  invalidate  or  forfeit  affiant's  permit  to  sell  into.xicating  liq- 
uors, which  had  theretofore  been  duly  granted  to  affiant,  and  that 
he,  said  Vanfleet,  would  give  affiant  his  word  and  honor  that  his 
Baid  permit  would  not  be  forfeited,  and  that  affiant  should  not 


AMERICAN  CRIMINAL  REPORTS. 


be  disturbed  in  bis  business  of  selling  intoxicating  li<jUoi"s  un- 
der said  permit,  until  a  judgment  of  forfeiture  sbould  be  regu- 
larly obtained,  wbicli  could  not  be  done  until  tbe   next  term  of 
tbe  court  in  September  next,  and  upon  an  action  regularly  in- 
stituted against  affiant  for  tliat  i>uriK)se;  tbat  affiant  being  ignor- 
ant of  tbe  law  in  tliis  respect,  and  believing  tbat  said  Vantlect 
knew  and  correctly  stated  tbe  law  to  liim,  and  fully  relying  upon 
such  belief,  and  upon  said  Vanfleet's  words,  so  i)ledged,  tbat  af- 
fiant sbould  not  be  disturbed  in  bis  said  business,  consented  to, 
and  did  tbei'eafter  jdead  guilty  in  said  first  named  cause,  and 
submit  to  a  judgment  of  ten  dollars  and  costs  therein  againt«t 
bim,  and  did  pay  to  said  Vanfleet  bis  fee  as  prosecuting  attor- 
ney, viz.:  five  dollars,  and  also  tbe  other  costs  taxed  in  said  other 
cause,  number  84,  and  so  dismissed,  amounting  in  all  to  twelve 
dollars  and  fifty  cents,  which  said  Vanfieet  received;  and  affi- 
ant further  says,  that  be  was  not  and  is  not  guilty  of  the  otlenso 
cbarired  airainst  him  in  said  infarmation  and  affidavit  filed  in  said 
cause  number  83;  that  he  did  not  so  sell  any  intoxicating  li(|- 
uor  to  said  Charles  E.  Jessup,  in  violation  of  law  as  therein  charged, 
but  that  he  so  pleaded  guilty  in  said  causes  solely  for  tbe  reason 
that  be  believed  the  cost  to  him,  in  time  and  money  expended, 
would  be  greater  to  defend  said  causes,  than  to  plead  guilty  and 
pay  said  judgment,  and  because  of  such  statements  so  made  Iiy 
said  Vanfieet;  that  afterward,  viz.:  on  the  13tb  of  ^lay,  1874, 
the  said  Vanfieet  formally  notified  affiant  by  letter  that  if  alHant 
sold  any  more  intoxicating  licpior,  ho  Vanfieet,  as  such  prosecut- 
ing attorney,  would  prosecute  affiant  for  all  such   sales,  as  for 
selling  intoxicating  li<jUor  without  a  ])ermit,  and  that  said  af- 
fiant sbould  be  so  prosecuted,  and  his  place  of  business  should 
and  would  be  abated  as  a  nuisance  by  reason  of  such  sales;  and 
affiant  further  says,  that  be  had  theretofore  duly  obtained  a  per- 
mit to  sell  intoxicating  li(pior  at  his  said  place  of  business,  and 
had  then,  and  yet  has,  a  large  sum  of  money  invested  in  said 
businers  on  the  faith  of  such  permit  and  relying  thereon  for  au- 
thority to  continue  such  business;  that  he  would  not  so  have 
pleaded  guilty  in  said  cause  but  for  said  representations  and 
inducements  so  made  and  held  out  by  said  Vanfieet,  and  that  ho 
will  be  greatly  injured  in  loss  of  time,  expenses  of  defense,  and  oth- 
erwise, if  said  Vanfleet  prosecutes  him  as  he  threatens  to  do; 
and  that  to  avoid  such  prosecution,  affiant  believes  he  will  bo 


■Wf 


McCOY  r.  STATE. 


5S9 


li(|Uoi's  nn- 
lid  be  roifu- 
lext  term  of 
ejjfuliirlj  in- 
jein;.^  ij^uor- 
lid  Vanlloet 

^ed,  tliat  af- 
:jnsente(l  to, 
[  cause,  and 
■eiii  against 
nting  attor- 

I  said  otlier 

II  to  twelve 
l1;  and  atfi- 
'  the  otlensG 
liled  in  said 
icicating  li(|- 
ein  charged, 
r  the  reason 
y  expendeil, 
I  guilty  and 
so  made  hy 
^lay,  ls74, 
at  if  aillant 
jh  prosecut- 
iales,  as  for 
lat  said  af- 
ness  should 
1  sales;  and 
lined  a  per- 
isiness,  and 
ted  in  said 
;'eo!i  for  au- 
iiot  80  have 
tations  and 
and  that  he 
ise,  andoth- 
tens  to  do; 

he  will  bo 


coni]>elled  to  close  his  said  ])lace  of  business,  to  his  great  injury 
and  damage,  uidess  the  judgment  in  this  cause,  number  S3,  bo 
set  aside,  and  lie  be  allowed  to  defend  said  cause.     Ei.za  Goldex. 

"  Subscribed  and  sworn  to  before  nie,  this  3d  day  of  June, 
1S74.  LaPout  IIkknkk,  Clo'k:' 

The  aflidavit  of  Sylvester  W.  Slnnnard  was  also  iiled  in  sup- 
port of  the  ai)pellant's  afHdavit.  Upon  these  affidavits  the  ap- 
pellant moved  the  court  to  set  aside  the  judgment  and  allow 
him  to  plead  not  guilty  to  the  infornuition.  The  court  denied 
his  motion;  he  excepted,  and  appeals  to  this  court. 

The  a])j)ellant,  having  shown  ns  by  his  own  affidavit  that  he 
accepted  a  corrupt  i)roposition  and  corruptly  purchased  his  in- 
dulgence, is  not  entitled  to  relief. 

The  judgment  is  affirmed. 


McCoy  vs.  State. 

(52  Ga.,  287.) 

Puactice:    Ri'fimnff  ilhrjal  verdict. 


It  is  not  oiTor  to  refuse  to  record  an  illef,'al  verdict,  and  to  direct  the  jury  to  re- 
tire ayain  luid  bring  in  a  verdict  in  accordance  with  the  charge  of  the  court. 

Under  an  incHctnieiit  against  respondent,  charging  him  as  principal,  a  verdict 
of  guilty  as  accessory  after  the  fact  is  illegal. 


Tuii'PK,  J.  1.  The  defendant  was  jointly  indicted  with  three 
others  for  larceny  from  the  ]ierson.  The  jury  Urst  came  in  witli 
a  verdict  finding  the  defendant  "guilty  as  accessory  after  the 
fact."  The  court  directed  them  to  return  to  their  room,  and  if 
they  found  a  verdict,  it  must  be  guilty  or  not  guilty.  The  ver- 
dict was  rightly  rejected  by  the  court,  because  it  was  an  illegal 
verdict  under  the  indictment,  as  will  be  seen  presently. 

2.  The  verdict  being  an  illegal  one,  the  court  had  the  power, 
and  it  was  its  duty  to  reject  it,  and  to  give  the  directions  that 
were  given.      Will  lams  v.  The  State,  46  Ga.,  047. 

3.  Was  the  verdict  illegal  ?  "  An  accessory  after  the  fact  is  a 
person  who,  after  full  knowledge  that  a  crime  has  been  commit- 


11 


fc-" .'  »t 


j" 


if. 


r 


m 


\ 


1 9- 


mi 


I  I 


if, 


590 


AMERICAN  CRIMINAL  REPORTS. 


ted,  conceals  it  from  the  magistrate,  and  harbors,  assists  or  j)ro- 
tccts  the  i»erson  charged  with  or  convicted  of  the  crime."    C(»de, 
sec.  4.30S.     This  court  has  twice  decided  that  on  an  indictment 
charging  a  defendant  as  principal  in  the  first  degree,  or  as  the 
actual  perpetrator  of  the  crime,  he  caimot  be  eonvicted  as  ])rin- 
cipal  in  the  second  degree.      Washington  v.  The  Stotc^  30  (J;i., 
222 ;  Shaw  v.  The  State,  40  id.,  120.     Granting,  ex  gratia,  that  in 
misdemeanors  there  may  be  accessories,  on  wliich,  see  Lcwln  v.  The 
State,  33  id.,  137,  or  that  the  accessory  may  be  put  on  trial  be- 
fore the  conviction  of  tlic  principal,  sec  Smith  v.  The  State,  ■ii] 
id.,  29S;  not  even  tlien,  under  the  principle  on  wliich  the  decis- 
ion in  Washington  v.  The  State  is  put,  could  the  defendant  be 
convicted  as  accessory  upon  an  indictment  charging  him  as  a 
real  actor  and  perpetrator  of  the  crime.     In  that  case,  the  grouiul 
on  which  the  decision  was  placed,  to  wit,  that  a  defendant  wlio 
is  charged  as  the  perpetrator  of  the  crime  cannot  be  convicted 
as  princi])al  in  the  second  degree  isi  "  for  the  obvious  rcasun  tliat 
the  accusation  does  not  notify  liim  that  he  will  be  held  responsi- 
ble for  such  acts  as  will  make  him  a  principal  in  tlie  second  de- 
gree, and  therefore  he  is  taken  by  surprise  at  the  trial;"  and 
"that  he  will  have  had  no  notice  that  he  will  be  recpiired  to 
meet  such  evidence  or  be  prepared  to  rebut  or  explain  it."    This 
will  apj)ly  to  the  case  of  an  accessory  as  well  as  that  of  a  prin- 
cipal in  the  second  degree.     An  examination  of  the  sections  de- 
fining the  two  classes  of  offenders  will  show  this  at  once.    With- 
out determining  whether  there  can  be  an  accessory  in  misde- 
meanors,  we  say  that  under  this  indictment  the   first  verdict 
returned  by  the  jury  "as  illegal,  and  was  projierly  rejected  Ijy 
the  court.    7  C.  &  P.,  575. 

4.  Upon  a  second  consideration  of  the  case,  the  jury  returned 
a  verdict  of  guilty,  and  the  court  refused  to  set  it  aside  on  the 
ground  taken  in  the  motion  for  a  new  trial,  that  it  was  contrary 
to  the  evidence.  This  is  one  of  that  numerous  class  of  cases 
wherein  all  we  liave  to  say  on  this  point  is,  that  we  do  not  tliink 
it  was  such  an  abuse  of  discretion  as  to  call  for  the  interference 
of  this  court.  Jiidgmetit  affinned. 

Note.  —  Tho  following  account  of  a  very  celelirated  encounter  b(!twenn  Erskino 
and  BuM.KK  u  taken  from  the  "  Spt?echea  of  Ix)rd  Erskine,"  vol.  1,  p.  VM.  It  or- 
curred  on  the  trial  of  the  Dean  of  St.  Asaph,  for  lilwl.  No  question  was  aftei-wiinlj 
made  by  Erskine  but  that  Justice  Bcller  had  acted  strictly  witliin  his  duty,  in 


?8ists  or  jii'o. 
me."    C(Kle, 

indictniout 
ec,  or  us  tlio 
cted  as  j)rin- 
'^tate,  30  (iii., 
nitid^  tliivt  in 
Lcnunt  V.  The 

oil  trial  1)0- 
V>e  State,  4G 
c'h  the  (lecig. 
lufoiulant  be 
n^  him  at*  a 
},  the  f,'ruuml 
.'feiKlaiit  who 
he  coiivictod 
s  reason  that 
eld  respoiirii- 
le  second  de- 
J  trial;"  and 
!  re(jiiired  to 
in  it."  This 
lat  of  a  priii- 
!  sections  dc- 
once,  AVith- 
>ry  in  niisde- 
tirst  verdict 
y  rejected  hy 

iiry  returned 
aside  on  the 
was  contrary 
lass  of  cases 
do  not  thiidc 
interference 
t  affirmed. 

•(.'tween  El^kino 
l,p.  1;K  Itoo- 
i  wa.s  afkn-wiirdj 
liin  his  duty,  in 


McCOY  V.  STATE. 


601 


satisfying  hinisdf  that  tho  jury  comprohcndcd  the  vcnliet  whi'h  they  gave,  and 
in  h living  it  recorded  according  to  their  int<.'nt: 

The  jury  withdrtjw  to  consider  of  their  verdict,  and  in  aliout  half  an  hour  ro- 
tumi'd  again  into  court. 

Ammniv.    (ientlenien,  do  you  find  tlie  defendant  guUty  or  not  guilty? 

Forettinii.    (Juilty  of  puliUnhing,  only. 

^fl•.  Krskhif.    You  find  him  guilty  of  publiHhing.  only? 

A  jiii'ot:    ( f uilty  only  of  jmljlishing. 

Mr.  Justice  IMler.  I  believe  that  is  a  verdict  not  quite  con-ect.  You  must 
exiilain  that  one  way  or  the  other,  a.s  to  the  meaning  of  the  innuendoes.  The  in- 
dictment haa  stated  that  (J.  means  (tentlemen;  F.,  Farmer;  the  King,  tho  King 
of  Great  Hritiiin,  and  the  Parliament,  the  Parliament  of  Great  Britain. 

One  of  thejto'H.    We  have  no  doubt  of  that. 

Mi:  Justice  Duller.  If  you  find  him  guilty  of  publiBhing,  you  nmst  not  say  tho 
word  onli/. 

Mr.  Emkinc.    By  that,  they  mean  to  find  there  was  no  sedition. 

A  Juror.    We  oidy  find  him  guilty  of  publishing.  Wi;  do  not  find  anything  else. 

Mr.  Emkine.  I  beg  yonr  lordship's  pardon,  with  great  submission.  1  am  sure 
I  mean  nothing  that  is  irregular.  I  understuid  they  say,  We  only  find  him 
guilty  of  puldishing. 

A  juror.    Certiiinly;  that  is  all  we  do  find, 

Mr.  lirodcrick.  They  have  not  found  that  it  is  a  libel  of  and  concerning  tho 
king  and  his  goveniment. 

Mr.  Junticv  lUiUcr.  If  you  only  attend  to  what  is  said,  there  is  no  question  or 
doubt.  If  you  are  satisfied  whether  the  letter  (}.  meant  Gentleman,  whether  F. 
means  Farmer,  the  King  means  the  King  of  Great  Britain,  the  Parliament,  the 
Piurliiunent  of  Great  Britain  —  if  they  are  all  satisfied  it  is  so,  is  there  any  other 
iimuendo  in  the  indictment? 

Mr.  lA'i/ccntvr.    Yes ;  there  is  one  more  ujwn  the  word  rotes. 

Mr.  Erslcinc.  When  tho  jury  came  into  court,  they  gave,  in  the  hearing  of 
every  man  i)resent,  tho  very  verdict  that  was  given  in  tho  ciuse  of  I'he  King  v. 
WoodfoU;  thi'y  said,  Guilty  of  publishing,  only.  Gentlemen,  I  desire  to  know 
whether  you  mean  the  word  onli/  to  stand  ui  your  verdict? 

Oiieofthejun/.    Certainly. 

Another  juror.    Certiiinly. 

Mr.  Justice  liuUer.  GentliMuen,  if  you  atld  the  word  only,  it  will  be  negativ- 
ing tho  innuendoes;  it  will  be  nogativmg  that  by  the  word  King  it  means  the 
King  of  Great  Britain;  by  the  word  Piu-liament,  Parliament  of  Great  Britain;  by 
the  lett*'r  F.,  it  means  Farmer,  and  G.,  Gentleman;  that,  I  underatand,  you  do 
not  mean. 

A  juror.    No. 

Mr.  ErsJt-ine.  Jly  Ix)rd,  I  say  that  will  have  the  effect  of  a  general  venlict  of 
guilty.  I  desire  the  verdict  may  be  recorded.  I  desire  your  lordship,  sitting  here 
as  judge,  to  record  the  verdict  iis  given  by  the  juiy.  If  the  juiy  depiu-t  from  the 
word  onfi/,  they  alter  their  verdict. 

Mr.  Justice  Duller.  I  will  t-ike  the  verdict  as  they  mean  to  give  it;  it  shall 
not  be  altered.  Gentlemen,  if  I  undei-stand  you  right,  yom-  verdict  is  this:  You 
mean  to  say,  guilty  of  pullishing  this  hbel? 

A  juror.    No;  the  pa,mphlet.    We  do  not  decide  upon  its  being  a  libeh 


m 


1 1 


^ 


■it' 


602 


AMERICAN  CRIMINAL  UKPORSS. 


Afr.  JiinlU'i'  !f  illrr.     Voii  say  ho  w  j^uilty  of  imliliHhinjr  tlii'  pamplilt't,  aiul  that 
llio  iiK'iiiiinjr  of  till'  iiiiiui'iidoos  in  iw  statcil  in  the  indictment. 
AJiinir.    Ci'rtiiinly. 

Mr,  Kr.il,-i)ir.    is  tin;  word  on!//  to  .itund  part  of  your  vortlict? 
A  Jiinn:    Certainly. 

Mr.  I'.'rnl,-iiiv.    Tl'.cn  I  insist  it  sliall  lie  rwordcd. 

Mr.  Jiistiir  Ihtlkr.    'llion  tho  vonlict  must  be  misunderstood.    \^i  me  under- 
stand  tlie  jniy, 
Mr.  Krsft-hir.    Tlio  jury  do  (indei-stand  their  verdict. 
Mr.  JiiKtirv  Jfitller,    .Sir,  I  will  not  he  inteirupted. 

Mr.  I'Jr.'th-iiir.  )  stand  lieri'  a-s  an  iidvociito  for  a  brother  citizen,  and  I  desiro 
tliat  the  word  oiifi/  may  he  recDrded, 

Mr.  JiLitifp  liiillcr.  Sit  down,  sir.  Remember  your  duty,  or  I  shall  he  ohli^'od 
to  jirooi^'d  in  another  manner. 

Mr.  Kr.shi)H'.  Your  lordship  may  pnweed  in  what  manner  you  think  fit.  I 
know  my  duty  iw  well  as  your  lordship  knows  yours.  I  shall  not  alter  my  con- 
duct. 

Mr.  JiLitiri'  Ihillcr.    Oentlemen,  if  you  say  iin\\iy  of  pnblishing,  only,  you 
ne^itivo  tho  meaninpr  of  the  particular  words  1  have  mentioned. 
A  juror.     Then  we  be^;  to  <,'o  out. 

Mr.  Jimtlrv  Itnlh-r.    If  you  say  (^lilty  of  pubhshin>j  only,  the.  conseijuenco  is 
this,  that  you  ne>,'aiive  tho  meaning,'  of  the  ditf'erent  words  I  mentioned  to  yon. 
That  is  tho  operation  of  the  word  ouli/.    They  are  endeavorinj^  to  make  j'ou  give 
a  verdict  in  worrls  different  from  what  you  nu.'an. 
A  Juror.    Wo  should  be  very  ylad  to  he  informed  how  it  will  operate. 
Mr.  Ju.stice  IhiUvr.     If  you  say  nothing  more,  but  lind  him  jfuilty  of  pubhshinj;, 
and  leave  out  the  word  f»ihi,  the  <iue.ition  of  law  is  open  upon  the  reeonl,  ami 
they  may  ajiply  to  the  court  of  the  Kinf,''s  Hench,  and  move  in  arrest  of  judj^'iuent 
there.     If  tiiey  are  not  satisfied  with  the  opinion  of  that  court,  either  party  luw  a 
rijrht  to  yo  to  the  House  of  Loids,  if  you  find  nothinj,'  more  than  the  simple  fact; 
but  if  you  add  the  word  o»i///,  you  do  not  find  all  the  facts;  you  do  not  find  in 
fact  that  the  letter  (r.  means  (ientleman,  that  F.  means  Farmer,  thai  the  Kiiij,', 
the  Kin<,'  of  Great  Britain,  and  rarliament,  the  I'iuliament  of  (Jreat  Uritain. 
A  Juror.    We  admit  that. 

Mr.  Justice  JIulltr.    Then  j'ou  must  leave  out  the  word  oulif. 
Mr.  Krsh-inc.    1  bi.'f^  to  ask  j'ou  Lordship  this  tpiestion:  Whether,  if  tlM>  juiy 
find  him  piilty  of  puV)lisliinf,'.  leaving?  out  the  wor<l  ouhj,  and  if  the  judgment  is 
not  arrested  by  the  Court  of  King's  Bench,  whether  tho  sedition  does  not  stand 
recoriled  ? 

Mr.  Justice  Duller.  No,  it  does  not,  unless  the  pamphlet  bo  a  libel  in  point 
of  law. 

3/;'.  ErsJiine.  True;  but  can  I  say  that  the  defendant  did  not  publish  it  sedi- 
tiously, if  judgment  is  not  arresti>d,  but  entered  in  tho  record? 

Mr.  Justice  liuller.  I  say  it  will  not  stand  as  proving  the  sedition.  Gentle- 
men, I  tell  it  you  lus  law,  and  this  is  my  particuUir  satisfaction,  a.s  1  t<^>ld  you  when 
summing  up  the  case,  if  in  what  1  now  say  to  you  I  am  wrong  in  any  instance, 
they  have  a  right  to  move  for  a  new  trial.  Tho  law  is  this:  If  you  find  him  guilty 
of  publishing,  without  saying  more,  tho  question  whether  it  is  libel  or  not  is  open 
for  tho  consideration  of  the  court. 


, 


McCOY  V.  STATE. 


603 


mphlct,  luul  tluit 


Lot  jno  umliT" 

zcn,  aiul  I  dmra 

shall  bo  c)V(li),'i'(l 

you  think  (it.    I 
ot  iiltor  my  con- 

(hing,  only,  you 


a  conac<iuonco  is 
cntioncd  to  yoii. 

0  niiiki^  you  fjivo 

oporato. 
Ity  of  imhlishiiif,', 

1  tin.'  roLonl,  iiml 

Tl'st  of  ,jU(l{,'llll'llt 

itlicr  party  has  a 
the  .simjih'  fatt; 
)U  do  not  find  in 
r,  that  the  Kiiij,', 
a'lit  liritain. 


ether,  if  (1m)  juiy 

tlio  judtrnn'nt  is 

in  does  not  stand 

0  a  libel  in  iwint 
it  publish  it  sedi- 

[•dition.    Gentle- 

1  I  t<.ild  you  when 
in  any  instunce, 

II  find  him  guilty 
lel  or  not  is  open 


A  Juror.    Tlmt  is  what  wo  mean. 

Mr.  Jusliee  liuUer.     If  you  Hay  guilty  of  pubUshing  only,  it  is  an  incompleto 
verdict,  liccauHO  of  tho  word  oh///. 
A  Juror,    Wo  certainly  mean  to  leave  tho  matter  of  lilxil  to  tho  court. 
Mr.  KrMne.    Do  you  find  xeditionV 
A  Juror.    No;  not  ho;  wo  do  not  give  any  verdict  upon  it. 
Mr.  Jundre  liHllcr,    I  speak  from  luljudged  canes  (I  will  take  th(!  verdict  when 
you  understand  it  yourselves  ui  tho  words  you  give  it);  if  you  say  guilty  of  pulj- 
lishlng  only,  there  must  be  another  trial. 
A  Juror.    We  did  not  say  so;  only  guilty  of  publishing. 
Mr.  Kruk'inc.    Will  your  Lordship  allow  it  to  bo  recorded  thus.  Only  guilty 
of  puljlisliing? 
Mr.  Jufttire  BuUer,    It  is  misunderstood. 

Mr.  Er»klne.  Tho  jury  say,  OiUy  guilty  of  publishing.  Onco  more,  I  desire 
that  that  verdict  may  Ijo  recorded. 

Mr.  Justice  linlkr.  If  you  say,  only  guilty  of  publishing,  then  it  is  contrary 
to  tlie  innuendoes;  if  you  think  tho  word  King,  means  the  King  of  Great  Britain, 
tilt!  word  Parliament  tho  Parliament  of  Great  liritain,  the  G.  means  Gentleman, 
and  the  F.  Fanner,  you  may  say  tlm,  Guilty  of  publishing;  but  whether  a  libel 
or  not,  tho  jury  do  not  find. 
A  Juror,    Yes. 

Mr.  Erskiue.  I  asked  tliis  question  of  your  Lordship  in  the  hearing  of  the  jury, 
whether  upon  the  verdict  you  desire  them  to  find,  the  sedition  which  they  have 
not  found  will  not  bo  iiifen-ed  by  the  court  if  judgment  is  not  arrested? 

Mr.  Justice  liuUer,    Will  you  attend?    Do  you  give  it  in  tliis  way.  Guilty  of 
the  publication;  but  whether  a  libi.'l  or  not,  j'ou  do  not  find? 
A  Juror.    We  do  not  find  it  a  liliel,  my  Lord;  we  do  not  decide  upon  it. 
Mr.  Erskiiw.    They  find  it  no  lilwl. 
Mr.  Justice  liuller.    You  see  what  is  attempted  to  bo  done? 
Mr.  Erskitie.    There  is  nothing  wrong  attempted  upon  my  part.    I  ask  this 
once  again,  in  the  hearing  of  the  jurj-;  and  I  desire  an  answer  from  your  Lord- 
ship as  judge,  whether  or  no,  when  I  come  to  move  in  airest  of  judgment,  and 
the  court  enter  uj)  judgment,  luid  say  it  is  a  Ubel,  whether  I  can  aftenvards  say, 
ui  mitigation  of  the  punishment,  tJie  defendant  was  not  guilty  of  publishing  it 
with  a  seditious  intent,  when  he  is  found  guilty  of  pubhsliing  it  in  manner  and 
form  a«  stated ;  and  whether  the  juiy  are  not  tluis  made  to  find  him  guilty  of  sedi- 
tion, when  hi  the  sanu^  moment  tliey  ihd  not  mean  to  do  so.    Gentlemen,  do  you 
find  liini  guilty  of  sedition? 
A  Juror.    We  do  not,  neitlier  one  nor  the  other. 
Mr.  o  ustice  BuUer.    Take  tJie  verdict. 

Associate.    You  say.  Guilty  of  publishing;  but  whctlier  a  libel  or  not,  you  do 
not  find? 
A  Juror.    That  is  not  tho  verdict. 

Mr.  Justice  liuUer.    You  say.  Guilty  of  publishing;  but  whetlier  a  libel  or  not, 
you  do  not  find  —  is  that  your  meanuig? 
A  Juror.    That  is  our  meaning. 

One  of  the  Counsel.    Do  you  leave  the  intention  to  the  court? 
A  Juror.    Certainly. 
Mr,  Cowper,    The  intention  arises  out  of  the  record. 

Vol.  L- 38 


694 


AMERICAN  CRIMINAL  REPORTS. 


Mr.  Justice  Biillei;  And  unless  it  is  clear  upon  record,  there  can  Iw  no  judg. 
nient  upon  it. 

Mr.  Bearcrofi.    You  mean  to  leave  the  law  where  it  is  ? 

A  Juror.    Ceiiainly. 

Mr.  Justice  Ihilhr.  The  first  verdict  was  as  clear  as  could  be;  they  only 
wanted  it  to  be  confounded. 


/}  "1 


^J' 


1 

1 

m.  1 

"fr 

pS              :■ 

1 

II  '  ■ 

•  I'i 

fin                                   '  ^lll 

K  1. 

Hi           ''H 

"1 

,!    , 

S 

i 

-a 

I  . 


State  vs.  Bishop. 

(73  N.  C,  44.) 

Practice:    Correcting  illegal  verdict — Evidence  in  larceny. 

If  the  jury  tender  an  illegal  verdict,  the  court,  before  it  is  recorded,  has  a  right 
to  direct  tlioir  attention  to  it  and  have  tliem  render  a  venlict  resijonsivo  to 
the  issue. 

On  a  trial  for  larceny  of  a  $50  bill,  evidence  that  the  prisoner  two  months  after- 
wards passed  a  similar  bill,  and  asked  the  person  to  whom  he  paid  it  not  to 
tell  where  he  got  it,  is  acbnissible. 

On  a  trial  for  larceny,  evidence  tliat  tliird  persons  in  no  way  connected  with  the 
case,  and  agiiinst  whom  there  is  no  pixwf,  had  opiX)rtunity  to  st<}id  ti.o 
money,  is  inadmissible. 

On  a  trial  for  larceny  of  a  $50  bill,  wliorc  it  has  apiJCiirod  that  the  prisoner  had 
passed  a  similar  bill,  evidence  tending  to  show  that  he  had  no  mciins  but  las 
labor,  and  could  not  have  received  it  for  his  labor,  is  atlmissible. 

I>YNUM,  J.  The  defendant  was  indicted  for  the  larceny  of  a 
leatlier  trunk,  the  property  of  one  W.  J.  Bishop.  It  was  in 
proof  that  the  trunk,  when  stolen  in  the  month  of  October,  1S74, 
contained  one  new  fifty  dollar  bill  of  the  Exchan<ije  National 
Bank  of  Norfolk,  Va.;  that  the  prisoner  had  jireviously  been  in 
the  service  of  the  prosecutor,  as  a  laborer  on  his  farm,  and  had 
occasionally  M'aited  upon  the  office  from  which  the  trunk  was 
stolen,  and  was  familiar  with  the  locality  and  with  the  habits  of 
the  prosecutor;  that  he  was  at  the  time  in  the  service  of  one 
Capehart,  a  mile  and  a  half  distant,  and  very  frei^uently  visited 
the  prosecutor's  premises,  on  which  his  father  and  brother  lived. 
In  the  month  of  December  following  the  larceny,  the  prisoner 
passed  to  one  Charles,  for  small  bills,  a  new  fifty  dollar  bill  of 
the  same  Exchange  Bank  of  Norfolk,  at  the  same  time  caution- 
ing Charles  not  to  use  his  iiiiine  when  passing  off  this  bill,  and 
that  the  prisoner  left  the  county  the  next  day  for  lialeigh.  The 
evidence  of  the  prisoner's  acts  and  declarations,  as  to  the  fifty 
dollar  bill,  was  objected  to  by  him,  and  constitutes  his  first  ex- 
ception. 


e  can  Ix;  no  judg. 


iild  be;  they  only 


Jarcevtj. 

orded,  has  a  right 
•diet  re»iK)nsive  tj 

;wo  months  iifter- 
i  he  piiid  it  not  to 

snnected  with  the 
nity  to  stoid  ti.e 

t  the  prLsonor  had 
no  nieiins  but  las 
ssible. 

larceny  of  a 
It  was  ill 
Jctober,  1874, 
iif^e  Niitioiiiil 
ously  been  in 
'ann,  and  liad 
le  trunk  was 

the  habits  of 
erviee  of  one 
uently  visited 
brother  lived. 
,  the  prisoner 
dollar  bill  of 
time  caution- 
this  bill,  and 
^alei^h.  The 
s  to  the  fifty 
18  his  first  ex- 


li 


STATE  t'.  BISHOP. 


It  was  also  proved  by  the  state,  that  the  prisoner  had  no  means 
but  his  labor,  and  that  he  had  received  for  his  labor  in  1874  but 
about  thirty  dollars.  This  testimony  was  objected  to  by  the 
prisoner,  and  its  admission  makes  Ids  second  exception.  The 
prisoner  ofTercd  to  prove  that  one  Bryant,  who,  together  with 
other  laborers,  worked  on  the  prosecutor's  farm  at  the  time  of 
the  larceny,  was  familiar  with  the  locality,  and  had  waited  upon 
the  prosecutor's  office  in  the  year  1873,  and  also  that  said  Bry- 
ant, wlio  then  lived  on  the  farm,  was  seen  two  hours  after  the 
larceny,  the  same  night,  to  enter  the  grove  of  the  prosecutor,  in 
which  was  his  house,  by  the  least  frequented  of  two  paths  lead- 
ing  there.  This  evidence  was  objected  to  by  the  state  and  ruled 
out,  and  its  rejection  constitutes  the  third  exception  of  the  de- 
fendant. 

The  first  two  exceptions  are  clearly  untenable.  In  a  case 
turning  wholly  upon  circumstantial  evidence,  the  acts,  declara- 
tions and  opportunities  of  the  prisoner  were  competent,  because 
they  were  the  acts  and  declarations  of  the  prisoner  himself,  who 
•was  on  trial,  and  to  exclude  tliem  would  be  to  destroy'  the  very 
foundation  upon  which  criiniiuds  maybe  convicted  upon  circum- 
stantial testimony. 

The  third  exception  seems  to  he  equally  untenable,  as  has  been 
decided  in  the  leading  case  of  State  v.  May,  4  Dev.,  328,  fol- 
lowed by  the  State  v.  Duncan,  6  Ired.,  236,  and  State  v.  White, 
08  X.  (,{.  158. 

Bryant's  guilt  or  innocence  was  not  necessarily  connected  with 
tlie  guilt  or  innocence  of  the  prisoner.  The  crime  cliargetl  upon 
the  prisoner  might  be  as  readily  committed  by  many  as  by  one; 
both  might  be  guilty  with  entire  consistency.  Proof  of  the 
guilt  of  I^ryant  would,  therefore,  not  tend  in  the  least  to  estab- 
lish the  innocence  of  the  prisoner.  The  confessions  of  I^ryant, 
establisliing  his  own  guilt,  or  even  a  judgment  against  him  upon 
the  plea  of  guilty,  would  not  be  competent  evidence  for  the  pris- 
oner. The  same  principle  extends  to  the  acts  as  to  the  declara- 
tions of  Bryant;  they  are  all  the  acts  and  declarations  of  a  third 
person  not  on  trial,  and  are  excluded  as  res  Intel'  alios  acta,  unless 
made  competent  by  other  direct  evidence  connecting  Bryant  with 
the  corpus  delicti.  Testimony  to  any  part  of  the  res  gestae,  con- 
stituting Bryant's  alleged  guilt,  would  have  been  competent  and 
relevant,  but  the  prisoner  offered  no  evidence  of  the  kind.    If 


r  i 


M 


i.   A 


596 


AMERICAN  CRIMINAL  REPORTS. 


Bryant  had  been  on  trial,  these  acts  of  his  would  have  been  com- 
petent against  him,,  because  they  were  his  acts;  but  he  was  a 
stranger  to  the  matter  in  dispute  here,  and  his  acts  cannot  be 
admitted  in  evidence  for  or  against  a  third  party. 

An  exception  was  also  made  to  the  regularity  of  the  verdict. 
Tlie  jury  came  into  court,  in  the  absence  of  the  counsel,  and  an- 
nounced as  their  verdict,  that  they  found  the  prisoner  guilty  of 
the  larceny  of  the  fifty  dollar  bill;  when  the  court  infurmed 
them  that  the  prisoner  was  not  indicted  for  stealing  the  bill,  but 
the  trunk;  whereupon  they  retired  to  their  room,  and  after  con- 
sideration, came  into  court  and  in  the  presence  of  the  counsel  of 
the  prisoner,  rendered  a  verdict  of  guilty  of  the  larceny  of  tlie 
trunk,  as  charged  in  the  indictment.  The  objection  is  without 
force.  The  verdict  offered  was  not  received  or  recorded,  nor  the 
jury  discharged.  The  whole  matter  was  still  in  the  breast  of 
the  jury,  and  it  was  entirely  competent  to  correct  an  inadvertence 
so  as  to  make  the  verdict  responsive  to  the  indictment.  Tliey 
certainly  did  not  intend  to  acquit,  but  to  convict  the  prisoner, 
and  he  has  no  just  cause  of  complaint. 

There  is  no  error.  . 

Pee  Curiam:  Judgment  affirmed. 


EsTES  V8.  State. 

(55  Ga.,  1:31). 
Pkactice:     Verdict. 


On  a  general  verdict  of  guiltj-,  on  an  imliitment  containing  two  counts  for  dif- 
ferent oflensus  based  on  the  same  tnmsa^jtion,  the  Kiw  ajiphen  thi'  vi'iJict 
to  the  count  cliarging  the  higher  offen.^e. 

Warnek,  C.  J.  The  defendant  was  indicted  for  the  otleiise  of 
an  "  assault  with  intent  to  murder;"  on  the  trial  thereof,  tlio jury 
returned  the  following  verdict:  "  We,  the  jury,  find  the  defend- 
ant guilty,  and  recommend  him  to  the  mercy  of  the  court." 
There  were  two  counts  in  the  indictineut.  The  fir.st  count  (diar^'od 
the  defendant  with  the  otl'ense  of  an  '"assault  with  iiitiiit  to 
murder,"  by  shooting  a  loaded  i)istol  at  one  Henry  Williams, 
wilfully,  feloniously,  and  of  his  malice  aforethought,  with  in- 
tent, him,  the  said  Henry  Williams,  to  kill  and  murder.     Tho 


fMi 


SEBORX  V.  STATE. 


597 


pave  been  com- 
l)at  lie  was  a 
acts  cannot  bo 

|of  tlie  verdict, 
junsel,  and  an- 
Isoner  guilty  of 
jourt  informed 
ig  the  bill,  but 
and  after  con- 
the  connsol  of 
larceny  of  the 
tion  is  witjioiit 
corded,  nor  the 
the  breast  of 
•xw  inadvertence 
ctment.    Tliev 
t  the  prisoner, 


ent  affirmed. 


second  count  in  the  indictment  charged  the  defendant  with  the 
offense  of  "  shooting  at  another."  The  defendant  made  a  motion 
in  arrest  of  judgment,  on  the  ground  that  the  indictment  on 
which  the  defendant  was  tried  and  convicted  contained,  in  sep- 
arate counts,  two  separate  and  distinct  offenses,  requiring  dif- 
ferent punishments,  and  tlie  jury  having  found  a  verdict  of 
guilty  generally,  it  is  impossible  to  tell  of  what  they  found  him 
guilty.  On  hearing  and  considering  the  motion,  the  court  over- 
ruled it,  and  the  defendant  excepted. 

This  is  not  an  open  question  in  this  court.  "Wliere  an  indict- 
ment contains  two  separate  counts  for  offenses  which  may  be 
properly  joined  therein,  the  one  for  a  liighor  grade,  and  the 
other  for  a  lower  grade  of  an  offense  of  the  same  nature,  con- 
nected with,  and  growing  out  of  the  same  transaction,  though  the 
punishment  for  each  grade  of  the  offense  may  be  different,  and 
upon  the  trial  the  jury  find  a  general  verdict  of  guilty,  the  legal 
intendment  of  such  a  verdict  is  to  find  the  defendant  guilty  of 
the  highest  grade  of  the  offense  charged  in  the  indictment.  Bul- 
lock V.  The  State,  10  Ga.,  47;  Deayi  v.  The  State,  43  id.,  218. 

Let  the  judgment  of  the  court  below  be  affirmed. 


two  counts  for  ilif- 
aiiplies  till'  vcidiut 


I*  the  oflt'iiso  of 
liereiif,  the  jury 
id  the  dt'foiid- 
of  the  ctinrt."' 
ennntcharired 
rith  iiitoiit  to 
■nry  "WilJiiiiiis, 
ight,  witli  in- 
nurder.     Tiio 


Seborn  vs.  State. 

(51  Ga.,  164.) 

PnACTiCE :    Venlkt  as  to  three  set  aside  as  to  two — Assault  with  intent  to  murder. 

A  joint  verdict  as  to  tliree,  erroneous  as  to  two,  a^coinst  whom  there  is  not  suffi- 
cient evidence,  may  be  set  aside  a.s  to  those  two,  and  allowed  to  stand  as  to 
the  third,  against  whom  the  evidence  is  sufficient  to  sustain  the  verdict. 

The  endence  in  this  ciise,  Md  insufficient  to  justify  a  verdict  of  assault  with 
intent  to  murder,  agiunst  two  of  the  respondents. 

AnitAM  Sehorn,  Ned  Seborn  and  Sarah  Seborn,  were  placed 
upon  trial  for  the  offense  of  an  assault  with  intent  to  commit 
murder,  alleged  to  have  been  committed  upon  the  person  of  Joe 
Lambert,  on  August  3d,  1871.  The  defendants  pleaded  not  guilty. 

The  evidence  for  the  state  made  the  following  case:  On  the 
day  alleged  in  the  declaration,  Joe  Lambert  was  passing  down  a 
road  in  Screven  county,  with  his  ox  cart,  when  he  was  hailed  by 
Abram  Seborn,  v  no  wanted  to  know  about  "  some  tales  he  had 


sf      ' 


598 


AMERICAN  CRIMINAL  REPORTS. 


heard."  He  said  wlioever  had  insulted  him,  white  man  or  black 
man,  he  had  bought  a  pistol  witb  which  to  kill  him.  Lambert 
replied  that  he  "did  say  so,"  when  Abram  wheeled  and  shot  liini 
through  the  arm.  Lambert  caught  hold  of  a  rail  and  struck 
him.  Xed  Seborn,  the  father  of  Abrani  and  Sarah,  told  Al)nuu 
to  kill  him.  Sarah  ran  up  and  struck  him  on  the  head  witli  a 
rail.  Lambert  then  caught  Abram  and  Ned  and  held  them 
down  until  they  succeeded  in  getting  up  and  running  off.  Aljram 
turned  and  shot  him  through  the  thigh.  Lainb'ert  then  went  olf 
in  his  cart.  lie  fainted  when  the  doctor  rue  the  ball  out.  lie 
had  passed  the  parties  about  one  hundred  yards,  when  Abram 
hailed  him.  They  v'ere  over  the  fence,  in  the  field,  lie  did  not 
go  into  the  field  until  he  was  shot  the  first  time.  Followed 
Abram  about  tliree  hundred  yards  into  the  field,  trying  to  reach 
liim  before  he  could  cock  his  pistol.  Ned  said,  after  the  dilli- 
cnlty,  that  he  wished  he  had  killed  Lambert;  that  he  would  have 
been  justified  in  so  doing. 

The  three  defendants  were  introduced  as  witnesses,  it  is  suj>. 
posed,  by  consent,  to  avoid  a  severance.  They  testified  substan- 
tially as  follows: 

Lambert  was  passing  along  the  road,  when  Abram  hailed  him 
and  said  he  wanted  to  see  him  about  some  news  he  had  heard. 
lie  admitted  "  the  news,"  and  immediately  jumped  intotlielicM 
and  jerked  a  rail  off  the  fence,  swearing  that  he  would  kill  Al)ram 
or  Abram  must  kill  him.  Abram  walked  off  ten  steps,  drew  his 
pistol,  and  told  him  to  stay  off.  lie  said,  "  I'll  kill  you  to-day, 
or  you  kill  me,"  and  knocked  Abram  down  on  his  knees  witli 
the  rail,  when  the  latter  fired,  shooting  him  through  the  arm. 
Before  Abram  could  get  up,  he  threw  down  the  rail  and  jumped 
on  him.  In  this  condition  of  affairs,  Sarah  hit  Lambert  witli  a 
rail.  Ned  came  up  and  told  Abram  to  "  take  away  his  pistol," 
He  "  took  away  his  pistol,"  got  up  and  ran  off  about  fifty  yards, 
Lambert  following  him  with  a  rail.  Ned  said,  "  Do  you  run, 
and  a  man  trying  to  kill  you?  Shoot  him  again."  Lambert 
still  followed  him,  between  four  and  five  hundred  yards  to  Ned's 
house,  when  he  fired  the  second  time.  Abram  carried  his  j)Istol 
to  shoot  rabbits.  "When  Ned  came  up  to  the  combatants,  Lam- 
bert said  to  him,  "  Where  are  you  going,  you  old  devil,  for  if 
you  come  any  nearer,  I  will  kill  you  or  Abram? "  The  rail  with 
which  Sarah  struck  Lambert  was  the  same  one  used  by  the  latter 


TT1 


SEBORN  V.  STATE. 


699 


e  man  or  black 
lim.  Lambert 
il  ami  sluit  liim 
ail  and  struck 
ill,  tokl  Abraiu 
ic  head  with  a 
.nd  held  them 
ig  off.  Aljraiii 
t  then  went  oil' 
:  ball  out.  lie 
,  when  Abraiu 
1.  lie  did  not 
me.  Followed 
trying  to  reach 
after  the  dilli- 
he  would  have 

jsses,  it  is  sup- 
itified  subataii- 

am  hailed  him 
he  had  heard, 
d  into  the  field 
lid  kill  Abram 
steps,  drew  his 
ill  jou  to-da_v, 
lis  knees  witli 
>ugh  the  arm. 
.il  and  jumped 
ambert  with  a 
fiy  his  pistol," 
)ut  fifty  yards, 
"  Do  you  run, 
n."  Lambert 
yards  to  Ned's 
ried  liis  ])istol 
batants,  Lam- 
d  devil,  for  if 
The  rail  with 
i  by  the  latter 


in  knocking  Abram  down.    Ked  told  lier  to  knock  him  again, 
for  he  would  kill  her  father  or  brother. 

The  jury  found  the  defendants  guilty  of  an  assault  with  intent 
to  murder.  They  moved  for  a  new  trial,  because  the  verdict 
was  contrary  to  the  law  and  thu  evidence.  The  motion  was  over- 
ruled, and  defendants  excepted. 

W.  Uohhy,  J.  L.  S'myleton,  by  Uilliard  tt'  Harrison,  for 
plaintiffs  in  error. 

John  W.  Roljinson,  Solicitor  General,  by  B.  II.  Hill  dc  Son, 
for  the  state. 

McCay,  J.  1.  There  is  no  good  objection  to  this  verdict  as 
to  Abram.  If  the  jury  believed  the  state's  witness,  he  was  guilty. 
But  taking  liia  whole  testimony  with  the  other  testimony,  we 
think  there  is  no  sufficient  evidence  of  assault  with  intent  to 
murder,  against  the  others.  To  make  out  this  offense,  it  must 
appear  that  had  the  assault  caused  the  death  of  the  person  as- 
saulted, it  would  have  been  murder.  The  evidence  of  the  prin- 
cipal witness  would  at  first  seem  to  implicate  all  the  defendants 
in  the  attack  on  him  in  the  lane.  But  if  it  be  looketl  at  criti- 
cally, it  will  appear  that  his  statements  on  this  point  are  not 
definite.  He  does  state  that  they  encouraged  and  aided  Abram, 
but  he  does  not  state  the  time  of  their  interference;  and  taking 
the  statements  of  the  other  witnesses,  especially  the  evidence  of 
the  track  of  the  blood,  it  would  appear  that  after  the  attack  iu 
the  lane  and  the  shooting,  then  Lambert  got  over  the  fence,  fol- 
lowed Abram  with  a  rail  in  his  hand,  and  did  his  best  to  com- 
mit serious  liurt  upon  him,  and  that  it  was  during  his  pursuit 
of  Abram,  that  the  old  man  and  the  girl  interfered  and  com- 
mitted the  assault  he  testifies  to.  We  can  excuse  him  for  the 
anger  which  led  him  thus  to  push  the  war  upon  this  foe.  A 
man  witli  lead  in  him  from  the  jiistol  of  an  adversary  may  be  ex- 
cused at  least,  if  in  the  jtassion  thus  begat,  he  fails  to  stand  only 
on  his  own  defense.  But  the  law  does  not  justify  such  acts,  and 
when  he  crossed  the  fence,  following  Abram  through  his  own 
field  with  a  murderous  weapon  endeavoring  to  strike  him,  he  was 
himself  violating  the  law.  The  same  charity  which  excuses  him 
for  the  anger  caused  by  the  wound  inflicted  on  him  will,  how- 
ever, also  excuse  the  old  man  and  the  girl  for  aiding  their  son 
and  brother,  wlien  his  life  was  in  danger  from  the  auger  and  the 


P"^ 


»!/-■*&,  "-'iU'.       A)' 


i!"  >  . 


CI 


n.i' 


.-J 

'a 

Ji. 

'« 

'*, 

li: 

fi^ 


000 


AMKUICAN  CRIMINAL  llKI'OItTS. 


rail  of  tlio  ])n)K(!(Mit<>r.  Abriim  wiia  rctrciitintij,  lio  luul  ^ot  over 
tlu!  fciKtf,  <j;(>t  oil"  Horiu!  OHO  Iiuiidred  yartlH,  tho  stiito'H  witiicsw 
hiiiiiluM't  wuH  artor  liiiii  hot,  with  riif^o,  iiiul  with  uii  instniimiut 
of  <loatIi  ill  his  liands.  it  caiiMot  bi;  fairly  naid  that  it  was  witii 
iiiiirdiiroiis  iiitdiit  tliat  tlio  (tld  man  and  tho  j^irl  interfered.  Tliey 
had  a  rii^ht  to  int(!rfere  at  that  Kta;^(!.  liainbert  had  iHutoine  a 
wroii;^^  d()(!r,  and  what  th<(y  did  wouhl  not  luive  been  niurdcr. 
Even  Altrain  liad  a  ri^ht  to  turn  upon  hit;  piirKuor.  and  had  he 
killed  Kanilntrt,  it  would  not  have  l)een  murder.  We  think,  there- 
fVirt",  the  verdict  aw  to  the  old  man  and  the  girl  is  ilh.'j^-al. 

L.  Ihit  it  oui^lit  to  stand  aj^ainst  Abram.  Under  our  system 
of  iiiiniiial  law,  the  |)riiK'.i|>le  uf  Heveraiu^  in  all  criminal  trials 
is  the  ;^('neral  rule.  There  is  no  reaBon  in  the  natun;  of  thiiii^'s 
why  the  verdict,  though  stit  aside  as  to  the  two,  should  not  stand 
as  to  the  oiH!  really  guilty.  J*erhaj»s  by  the  common  law  this 
could  not  be  doiu!.  Its  strict  rules  of  pleading  and  adhereiict! 
to  a  theoretical  nccuracy  in  such  matters,  tlioiigh  mudi  admired 
l»y  some,  is  iiKidilied  by  our  law,  and  we  tliink  the  modit'.catiun 
justifies  the  dis|M»sition  W(  make  of  this  case. 

fliidginent  allirmed  jis  to  .\bram,  and  reversed  as  to  Ts'ed  and 
Sarah. 


City  of  Hloominoton  vs.  IIkiland. 
((17  111..  27H.) 

PuACTlCK:     Aulhorilij    of  (illdnirif — I'arol  irmf/nlzdnri'  b<-finr.  police  tmif/in- 
tratc—  I'trsviivv  of  rcsiiondciit  on  trial  for  wi.sdnniniior. 

II.  wii-s  iiiTcst.'d  on  Satnnliiy  iiif^lit,l)y  ii  policciuaii  witlumt  a  warrant,  fur  ii 
violiitiiin  of  a  city  ordinaiii't'.  'i'lic  |H)li('cniiin,  after  arrest  in^fliiiii  took  awiiy 
liin  money,  sfCiiK).  On  Monday  morning''  H.  was  )>roii);lit  l>efore  tlie  polii-' 
nia^ristrate  wlio  look  wliat  wa.^  ineatii  for  a  |)arol  reeofrni/.ance  in  tlie  mnii  of 
^'•M),  in  appear  at  two  o'clock  in  the  aftern<H)n  for  iria,l.  No  lK)nd  wa.H  made 
nor  any  entered  on  llie  mat,'istrate'N  niinuleH.  H.  did  not  come  at  two.  TIk; 
l>olicema.n,  under  aulliority  of  1 1. 'h  attorney,  paid  tiie  city  attorney,  for  tJu' 
city,  ijCiUO  of  till!  money  in  iii.s  liand.s.  On  these  facts  it  w.is  held,  that  tlm 
attorney  lia<l  no  aut!i<irity  to  consent  to  tliis  use  of  his  client's  money,  fiiid 
tliat  this  disposition  of  it  was  unaiitliori/.cd,  iind  II.,  having sned  tlie  city  for 
the  ijilUK),  WUH  liflil  entitled  to  recover. 

A  i)arol  promise  to  api>ear  liefori!  a  iKilicc  maifistrat^,'  has  no  Icfjal  validity  or 
l)indinK  force;. 

On  a  trial  for  misdiimeaiior,  it  is  not  iica'ssary  that  the  respondent  should  ho 
pret^ent  in  person,  luid  tlio  trial  may  proceed  in  his  absence. 


lisul  <f(>t  over 
iiU^H  witnosH 
I  instniiiioiit 
it  it  WiiH  -.vitli 

liu\  IkHMMUU  ii 

H!«)ii   iminlcr. 

r.  and  lisul  he 

tliiiik,  thorc!- 

r  our  syKtciri 
'iiitiiiiil  trials 
n;  nj'  tliiii;,'s 
lid  not  Htaiid 
moil  law  tiii.s 
11(1  udliortiKM! 
nicli  iuliiiircd 
inodit'.ciitiun 

5  to  Mt'd  and 


'c  police  mtu/in- 


n,  AviiiTfiut,  for  ii 
ikIi'I"  t-odk  iiwiiy 
Ix'f'on;  tlm  polii-' 
u;o  in  tin'  hiiiu  i»f 

)  1m)II(1  WiW  lllilill: 
illK'ilt  tWl).     Till' 

ittoriii'y,  for  tJio 
IS  III  III,  tliat  till! 
uVh  nioni'y,  iiiul 
HiH'd  till'  city  fur 

li'Kiil  validity  or 

ndont  .slioulJ  lie 


CITY  01-'  HLOOMINfJTON  v.  HKILANJ). 


COl 


T^itKKSK,  J.  Tliiw  was  an  action  (»f  as.sunip.slt,  In  tlic  McLean 
circuit  court,  on  tlic  conmioii counts,  hroiij^lit  l»y  Henry  llciland 
a.i,'ainKt  tlic  city  of  I{lo(tiiiin;,4on,  rcsultiiif,'  in  a  verdict  for  the 
]>laintiir,  on  whidi  the  court  Hindered  jiidi^niicnt.  To  reverse  tliis 
jndj^'nient  the  tlefendant  apjtcalrt. 

That  tJKire  are  tliree  hundred  dollars  of  the  money  of  the  ]»hiint- 
iH'intlie  city  treasury  is  not  denied;  tlio  (question  is,  lias  the 
city,  undtM-  the  facts  of  tlie  case,  a  ri<,'ht  to  retain  \ti 

The  facts,  hri^rlly  stated,  an;,  that  plaintill',  a  strani^isr,  and  a 
(J(!rman,  i<^norant  of  our  lan_>;na<^e,  was  arrested  oji  the  Saturday 
ni^ht  of  the  sixth  of  .Fuly,  ls72,  l»y  a  ])oliceuian,  for  an  alleged 
violation  of  a  city  ordinance,  hut  without  any  warrant,  lie  was 
taken  to  the  calahoose  and  detained  over  Sunday,  and,  wliile  so 
in  coniiiKiment  and  nii'Ier  dunsss,  the  ]iolicenian  took  from  the 
]trisoner  liis  money,  amountini^  to  six  hundred  and  ninety-two 
dollars,  threi!  liundre<l  dollars  of  wliich  tlio  policeman  paid  over 
to  the  city  attorney,  and  he  to  t]»e  city  treasury;  of  the  halancOj 
he  ma(h!  a  special  deposit  in  the  hank. 

The  city  claims  the  ri^ht  to  retain  this  tliree  hundred  dollars, 
on  tliese  ^^rounds:  On  Monday  followini^  the  event,  the  accused 
was  l>ron<;ht  before  tlie  police  mai^istrate.  The  i)rosecution  not 
heiii'^  rea<ly  to  proccied  witli  tlie  trial,  on  account  of  the  absence 
of  the  ptdiceman,  the  ma<^istrate  took  what  was  deemed  the  re- 
cognizance of  tlie  jirisoner  in  the  sum  of  three  hundred  dollars, 
to  api>oar  at  two  o'clock  in  the  afterno(»n,  and  released  him. 

No  recoi^ni/.ance,  such  as  re(piired  hy  law,  was  taken,  no  bond 
beinj^  entered  into,  nor  was  any  entered  on  tlie  minutes  of  the 
|tolice  maj^istrate.  it  was  the  mere  verbal  promise;  of  the  accused 
to  be  pres(!nt  at  that  hour.  When  the  Ikmu*  arrived,  the  accused 
was  called,  but  came  not;  whereujion  the  ])olicemaii  wIkj  had 
taken  ]K)Pse8sioii  of  the  money,  doubtless  actinj^  under  the  dircc 
tion  of  the  attorney  of  the  accused,  jiald  to  the  city  attorney 
three  hundred  dollars,  and  he  paid  it  into  the  city  treasury. 

It  is  clear,  from  the  ])roof,  the  attorney  of  tlie  accused  had  no 
authority  from  liis  jirincipal  to  cause  his  money  to  take  this 
course,  lie  was  not  employed  for  any  such  ])ur pose.  The  ac- 
cused was  under  no  lei^al  obli<!;ation  to  appear;  and,  for  the  pur- 
pose of  a  trial,  if  the  accused  A-as  lcjL,'ally  arrested,  liisajipearanco 
at  tlie  trial  was  not  indispensable.  For  a  mere  misdemeanor,  as 
was  the  oH'ensc  charged,  lie  could  have  been  tried  in  his  absence; 


\  m 


I^H 


602 


AMERICAN  CRIMINAL  REPORTS. 


I'f'l    7 


Hi 

■   A    :, 

pU 

v<\ 

^    "4I 

i>fii 

n 

~^i 

1 

■J 

and  if  lie  was  found  guilty,  and  judgment  rendered  against  him, 
an  execution  could  have  been  issued  and  levied  on  the  money,  if 
the  parol  undertaking  to  appear  was  of  any  binding  force.  Viwt 
it  was  not  of  any  binding  force;  yet,  under  these  proceedings, 
of  no  validity,  the  accused  was  deprived  of  his  money,  and  now 
asks  the  city  to  restore  it  to  him.  This  demand,  as  we  view  the 
testimony  and  the  law,  is  a  just  demand,  and  must  be  accorded 
to  him. 

It  is  complained  by  appellant  that  the  court  refused  to  give 
two  instructions  asked  by  them;  the  first  of  which  was  substan- 
tially embraced  in  other  instructions  given,  and  the  second  is  not 
the  law,  a  parol  recognizance  having  no  validity. 

It  is  also  complained  that  the  court  refused  to  submit  these 
questions  sjiecially  to  the  jury,  propounded  by  the  defendant: 

I'^irst.  AVas  the  money  in  question  paid  over  to  the  city  by 
the  free  and  voluntary  direction  of  the  plaintifTs  attorney? 

Second.  Was  "Wm.  Shackleford  authorized  by  Ileiland  to  act 
for  him  in  relation  to  his  defense  before  the  police  court? 

This  practice  of  propounding  special  (piestions  to  the  jury  is 
authorized  by  Fcctiou  51  of  the  Practice  Act,  approved  Febru- 
ary 22,  1S72.  It  is,  however,  diacretionary  with  the  court,  and 
it  might  well  refuse  the  first  as  it  was  of  no  importance,  if  the 
attorney  had  directed  it,  as  he  had  no  authority  to  give  such  di- 
rection; and  as  to  the  second,  an  authority  to  act  in  defense  of 
an  accused  party  confers  no  authority  to  appropriate  his  uioncy, 
and  it  would  have  answered  no  good  purpose  had  the  jury  re- 
turned special  answers  to  these  (piestions. 

It  is  aj)parent  from  the  record,  that  the  city  has  the  money  of 
appellee  \\\\\(i\\,ex  wquo  et  bono,  they  ought  not  to  retain,  and  the 
verdict  and  judgment  are  right. 

The  judgment  must  be  aftirmed.  Judgment  affirmed. 


Gbioo  V8.  Peoplu. 
(31  Mich.,  471.) 
Practice:    Arraignment  and  pea 


■  Record. 


It  must  aliinnativoly  appear  by  tlie  record  of  11  crimiiuil  ciuso,  that  tliero  haa 
been  an  an-aignment  and  plea,  or  the  verdict  will  be  set  a.side  on  writ  of 
error. 


GRIGG  I'.  PEOPLE. 


603 


against  him, 
le  money,  if 
force.  ]}ut 
proceed  in<,'s, 
ey,  and  now 
wo  view  tlie 
be  Jiccordixl 

ised  to  give 
vas  substan- 
econd  is  not 

ibniit  tliese 
It'fendant: 

the  city  by 
)rney? 
eiland  to  act 
)urt? 

tlie  jury  is 
ived  Febni- 
e  court,  and 
tance,  if  tlie 
:ive  such  di- 
i  defense  of 

liis  money, 
:he  jury  re- 

10  money  of 
ain,  and  the 

offinned. 


that  tlicrc  haa 
iJe  on  writ  of 


Ekror  to  Wayne  Circuit. 

S.  Larncd  and  Michael  Flniane,  for  plaintiff  in  error. 

Andrew  J.  Smith,  Attorney  General,  for  the  people. 

GuAVKS,  C.  J.  The  plaintiff  in  error  was  informed  against  in 
the  Wayne  circuit  court,  for  the  larceny  of  two  horses.  The  value 
of  each  was  laid  above  one  hundred  dollars.  lie  was  convicted 
and  sentenced  to  the  house  of  correction  for  one  year  from  the 
27th  day  of  January  last.  Complaint  is  made  that  the  sentence, 
as  recorded,  does  not  rightly  describe  the  offense,  and  also  that 
the  action  of  the  court  in  vacating  an  order,  which  had  been 
granted  for  a  new  trial,  was  unwarranted.  But  as  there  is  anoth- 
er objection,  which  is  certainly  fatal,  these  points  will  be  passed 
over. 

It  is  alleged  for  error,  that  there  was  no  arraignment  upon  the 
information,  and  that  no  plea  was  made  by  the  prisoner  or  en- 
tered by  the  court.  The  return  to  the  writ  of  error  is  silent  on 
the  subject,  and  the  attorney  general,  whilst  admitting  that  an 
arraignment  and  plea  were  indispensible,  as  of  course  they  were, 
sul)niits  to  the  court  whether  the  absence  of  any  express  matter 
in  the  record  as  returned,  to  show  the  contrary,  it  ought  not  to 
be  intended  that  both  proceedings  were  actually  had. 

An  arraignment  and  plea  being  steps  imperatively  required, 
the  recital  of  them,  if  they  were  taken,  was  a  necessary  ingredi- 
ent of  the  record.  They  were  required  to  be  duly  entered,  and 
it  was  the  duty  of  the  court  below,  in  obelience  to  the  writ  of 
error,  to  certify  here  the  whole  record  in  the  exact  shape  in 
which  it  remained  there.  This  appears  to  have  been  done.  We 
even  find  some  matters  in  the  return  not  upon  common  law 
strictness,  components  of  the  record,  and  we  have  the  certificates 
of  the  clerk  that  a  true  and  correct  copy  is  given  of  all  the  pro- 
ceedings had  in  the  cause.  No  application  has  been  made  for 
any  further  or  different  return,  and  we  must  consider  that  the 
return  made  is  as  full  and  complete  as  the  record  below;  and  if 
in  any  such  case  it  would  be  admissible  to  assume  that  the  fault 
was  caused  by  the  failure  of  the  lower  court  to  have  the  proper 
entries  of  real  proceedings  made,  either  as  they  occurred  or  af- 
terwards by  amendment,  and  not  by  the  omission  of  the  pro- 
ceedings themselves,  the  face  of  the  present  return  will  not  war- 
rant any  such  presumption.    Two  motions  for  a  new  trial  appear 


1 

604 


AMERICAN  CRIMINAL  RErORTS. 


to  have  bcoji  made  and  passed  on  after  ar<3'iunent,  and  tlie  case 
must  have  undergone  such  a  sifting  as  to  apprise  tlie  court  of  tlie 
defects,  and  to  have  suggested  the  need  for  an  aniendniont  of  the 
record  if  the  difficulty  consisted  of  tlie  want  of  entries  and  not  of 
facts. 

Under  the  circumstances,  we  must  take  the  record  as  wo  find 
it  returned,  and  assume  that  it  tells  neither  more  nor  less  than 
what  occurred. 

The  omissions,  then,  are  sufficient  to  support  the  allegations  of 
error.  'No  better  evidence  to  maintain  them,  if  well  founded, 
could  regularly  be  produced.  An  express  statement  that  in  fact 
tlierc  was  no  arraignment  and  plea,  it  is  not  the  province  of  any- 
one to  make  and  insert.  Negative  evidence  is  that  oidy  which 
seems  practicable. 

The  sentence  and  conviction  must  be  set  aside,  and  the  plain- 
tiffin  error  mast  be  remanded  to  the  sheriff  of  "Wayne  county, 
that  he  may  be  lawfully  arraigned  on  the  information,  or  other- 
wise dealt  with  agreeable  to  law. 

CooLKY  and  Campbell,  JJ,,  concurred. 


.  Aylesworth  vs.  Pkoi'i-e. 
(65  m.,  301.) 
Puaotice:    Record — Arraignment  ami  plea. 

It  must  affirmatively  appear  on  the  record  that  on  indietniont  was  retmuod 

into  court. 
It  must  iiffinuativcly  appeixr  on  tlie  record  that  tlie  respondent  Wiis  amu!,niod 

and  plciuled  to  the  indictment. 

McAllistku,  J.  This  was  an  inditcment  in  the  Warren  cir- 
cuit court,  for  selling  liquor  without  a  license,  and  verdict  of 
guilty,  and  fine  imposed.  The  defendant  brings  the  record  to 
this  court  by  writ  of  error. 

The  record  purports  to  contain  an  indictment  against  plaintiff 
in  error,  but  it  wholly  fails  to  show  that  such  indictment  was 
ever  presented  in  court  by  any  grand  jury,  or  that  plaintiff  in 
error  was  ever  arraigned  upon  or  pleaded  to  it.  The  record  must 
show  that  the  indictment  was  retiirned  into  open  court.  Gard- 
ner V.  The  People^  20  111.,  430;  Sattler  v.  The  People,  59  id.,  G$. 


EISENMAN  r.  STATE. 


605 


1(1  tlio  cnso 
Boiirt  of  tho 
ncnt  of  tlio 
suiid  not  of 

aa  wc  find 
or  leas  tliaa 

legations  of 
11  founded, 
that  in  fact 
ince  of  un}-- 
only  wliich 

d  tho  pliiin- 
yne  county, 
n,  or  otlier- 


was  retmiiotl 
wiis  an-iiitfiioj 

\iVarrcn  cir- 

verdict  of 

e  record  to 

ist  plaintilt 
3tnient  was 
plaintiff  in 
ecord  must 
rt.  Ganl- 
,  69  id.,  Gb. 


The  record  should  also  show  that  the  plea  of  not  guilty  was 
entered.  Without  it  there  is  nothing  for  the  jury  to  try.  John- 
8071  et  al.  V.  The  Penjde,  22  111.,  314. 

The  judgment  of  the  court  helow  must  bu  reversed,  and  the 
cause  remanded.  Judgment  reversed. 


EisENMAN  vs.  State. 

(40  Ind.,  520.) 

Phactice:    AtraigniHvnt  and  plea. 


On  the  trial  of  an  appealed  criminal  case,  where  the  defendant  was  arraigned 
and  ploadod  before  the  justice,  it  is  not  necessarj*  that  there  should  be  a  new 
aniiigninent  and  plea  in  the  appellate  court. 

WoKDKX,  J.  This  was  a  prosecution  against  the  ai)pellant  be- 
fore a  justice  of  the  peace,  for  selling  intoxicating  liquor  to  a 
person  who  was,  at  the  time,  in  a  state  of  intoxication.  Before 
the  justice,  the  defendant  was  arraigned  upon  the  affidavit,  and 
pleaded  not  guilty  thereto;  and,  upon  trial,  was  convicted.  He 
appealed  to  the  circuit  court,  where,  upon  trial,  he  was  again 
convicted. 

The  only  point  made  by  counsel  for  the  appellant  is,  that  in 
the  circuit  court  he  was  not  arraigned,  and  did  not  plead  to  the 
affidavit.  The  record  shows  that  in  the  latter  court  the  defend- 
ant appeared  in  ])erson,  as  well  as  by  attorney,  and  that  the  cause 
was  submitted  to  the  court  for  trial. 

We  need  not  decide  what  would  have  been  the  effect  of  a  fail- 
ure to  formally  arraign  the  defendant  and  require  him  to  plead, 
had  the  prosecution  originated  in  the  circuit  court.  As  the  pros- 
ecution originated  before  a  justice  of  the  peace,  and  as  the  defend- 
ant was  there  arraigned  and  ])leaded  guilty  to  the  affidavit,  any 
further  arraignment  and  plea  were  entirely  unnecessary.  The 
defejidant  was  pi^.pvjrly  tried  on  the  affidavit,  which  was  filed  be- 
fore the  justice  of  the  peace.  Wachstetter  v.  The  State,  42  Ind., 
100;  0' Conner  v.  The  State,  45  id.,  347.  On  this  affidavit  he 
had  already  been  arraigned,  and  to  it  he  had  already  pleaded. 

The  judgment  below  is  affirmed,  with  costs. 


3,:il 

1:1 


^J^'' 


606 


AMERICAN  CRIMINAL  REPORTS. 


Davis  vs.  State. 

(38  Wis.,  487.) 
PnACTiCE:    An'aUjnimnt  and  plea  —  Record. 

Whero  it  doos  not  affirmativoly  appear  from  tho  rt'conl  that  defendant  was  nr- 
raitrned  and  ploadfd  U'fore  vi-rdiit,  a  conviction  will  ho  icvcixcd  on  iiior, 
and  tliiH  nilf  applicH  to  cases  of  assault  and  battt'iy. 

After  verdict,  the  court  has  no  jiower  to  have  a  plea  entered  nunc  pro  tunc  for 
the  defendant  without  his  consent. 

Ekkor  to  the  Circuit  Court  for  Iowa  County. 

The  plaintiff  in  error  was  prosecutoil  to  convict'  before  a 
justice  of  the  peace  for  assault  and  battery.     II  ealed  to 

the  circuit  court,  where  he  was  again  tried  and  founu  guilty  by 
the  jury.  The  return  of  the  justice  fails  to  show  that  lie  pkuded 
or  refused  to  plead  to  the  complaint  in  the  justice's  court;  and 
the  record  shows  that  he  did  not  plead  or  refuse  to  j)lead  thereto 
in  the  circuit  court.  On  tho  ground  that  he  had  never  pleaded 
or  been  called  u[»on  to  do  bo,  and  on  other  gr')unds  which  need 
not  bo  stated,  he  moved  in  arrest  of  judgment  in  the  circuit 
court.  That  court  denied  the  motion,  and  after  ordering  that  a 
plea  of  not  guilty  be  entered  nunc  pro  tunc,  rendered  judgment 
upon  the  verdict. 

Wihon  ttr  Jones,  for  plaintiff  in  error,  to  the  i)oint  that  the 
court  cainiot  supply  an  issue  after  verdict  in  a  criminal  action, 
cited  "Whart.  C'r.  Law,  530;  Vders  v.  The  State,  3  G.  Greene, 
74;  State  v.  Ilmjlics,  I  Ala.,  655. 

The  Attorney  General,  for  tho  state. 

Lyon,  J.  This  case  is  ruled  by  that  of  Donfjhtss  v.  The  ASfafc, 
3  "Wis.,  S20,  in  whicli  it  was  held  that  a  verdict  in  a  criminal 
case  where  there  has  been  neither  arraigmnent  nor  plea  is  a  nul- 
lity, and  no  judgment  can  be  rendered  thereon.  The  learned 
.attorney  general  concedes  this  to  be  so,  unless  (quoting  his  lan- 
guage): "1.  That  decision  should  be  held  not  api)licablo  to  a 
simple  assault  and  battery;  or  2.  That  error  was  cured  by  the 
order  entering  the  plea  nunc  j»u)  tnnr/  or  3.  The  statute  of 
1871,  ch.  137,  sec.  30,  cures  the  defect.   (Tay.  Stats.,  1042,  §  17.)" 

In  Douf/lass  v.  State,  the  offense  charged  in  the  indictment 
was  for  erecting  and  maintaining  a  nuisance.  Like  a  simple 
assault  and  battery,  this  was  a  mere  misdemeanor,  and  we  do 


iMulant  was  nr- 
vrrsci.!  on  I'rror, 

nc  pro  tunc  for 


before  a 
euled  tu 
lu  {guilty  by 
t  lie  pk'udod 
i  court;  and 
lead  thereto 
jver  pleaded 
which  need 
the  circuit 
eriu^  that  a 
.'d  judgment 

iiit  that  tlic 

iiinal  action, 

G.  Greene, 


\  The  St<tfc\ 
a  criminal 
lea  is  a  nul- 
riie  learned 
in<>^  his  laii- 
:)lical)lc  to  a 
iired  l»y  the 
a  statute  of 
042,  §  17.)" 
indictment 
:e  a  simple 
and  we  do 


DAVIS  1-.  STATE. 


GOV 


not  perceive  how  any  distinction  can  be  made  in  the  two  cases 
in  respect  to  the  neccessity  of  a  plea. 

Neither  do  we  think  that  the  defect  was  cured  by  tlie  entry, 
after  a  verdict,  of  a  plea  nunc  jm)  tunc.  We  have  been  referred 
to  no  authority  which  8ui)port8  the  opposite  view,  and  are  not 
aware  of  any  rule  of  criminal  practice  which  supports  it.  And 
it  nuiy  be  further  observed  that  the  jurors'  oaths  prescribed  by 
statute  are  framed  on  the  hypothesis  that  the  issue  is  to  be  made 
up  before  trial.  The  jury  in  the  circuit  court  were  sworn  to 
"well  and  truly  try  the  isme^^  between  the  state  and  the  plaint- 
iff in  error  according  to  the  evidence.  II.  S.,  ch.  17'J,  sec.  4. 
When  the  jury  were  so  sworn,  ami  when  the  verdict  was  ren- 
dered, there  was  no  issue  of  record  to  try.  The  form  of  the 
jury  oath  in  the  justice's  court  is  somewhat  different,  but  the 
import  is  believed  to  be  the  same,     U.  S.,  ch.  121,  sec.  16. 

Tlie  statute  of  1871,  cited  by  the  attorney  general,  does  not 
roach  the  case.  It  provides  for  correcting  certain  errors  or  mis- 
takes in  the  record  by  amendment.  The  plea  ordered  by  the 
court  to  be  entered  is  not,  in  any  correct  sense,  an  amendment. 
The  court,  by  its  order,  did  not  attempt  to  amend  anything,  but 
to  supjdy,  after  verdict,  an  entire  proceeding,  which  should  have 
been  taken  before  trial,  and  which  was  essential  to  a  proper  trial. 

The  case  of  State  v.  Cole,  19  Wis.,  129,  is  not  an  authority  for 
sustaining  the  practice  adopted  by  the  circuit  court  in  the  pres- 
ent case.  It  appears  in  the  report  of  that  case,  that  "after  the 
jury  had  been  impaneled  and  sworn,  the  defendant  was  put  to 
plead,  and  jdeaded  not  guilty."  In  a  head  note  it  is  said  that 
this  was  not  error.  But  so  far  as  the  report  shows,  the  point 
was  not  argued  or  decided.  It  became  of  no  importance  after 
the  court  awarded  a  new  trial  on  other  grounds.  We  do  not 
decide  the  precise  point  here.  We  oidy  hold  that  after  verdict, 
it  is  too  late  to  order  a  plea  to  be  entered  for  the  defendant  in  a 
criminal  case  without  his  consent,  and  then  to  i*ender  judgment 
on  the  verdict. 

By  the  Court.  —  The  judgments,  both  of  the  circuit  court  and 
the  justice,  are  reversed. 


60S 


AMERICAN  CRIMINAL  REPORTS. 


Stubds  vs.  State. 

(49  Miss.,  716.) 

Phactice:    Presfltice  of  rei>pondent  during  trial  —  Record. 

Judgment  will  be  reversed  where  the  record  does  not  offinnatively  show  that 
the  respondent  was  prest^nt  tliroughout  tJie  trial  and  when  tlie  venlict  was 
rendered. 

Taudei.l,  J.  The  plaintiff  in  error  was  indicted,  tried  and 
convicted  of  the  crime  of  mnrder.  The  only  point  made  here  is, 
that  the  record  does  not  show,  affirmatively,  the  presence  of  the 
accused  throughout  the  trial,  and  particularly  that  it  does  not 
show  his  presence  when  the  verdict  of  the  jury  was  returned, 
nor  when  tlie  motion  for  a  new  trial  was  made  and  overruled. 

The  record  states  the  presence  distinctly,  of  the  accused,  on 
each  day  of  the  trial,  down  to  the  lOth  day  of  October,  1S72,  tlie 
twelfth  day  of  the  term  at  which  the  trial  was  had,  on  which  last 
day  tiie  entry  is  this:  "Saturdjiy  morning,  eight  o'clock,  Octo- 
ber 19th,  1872.  Court  met  pursuant  to  the  adjournment  of  yes- 
terday. Present,  the  same  as  yesterday;  the  Hon.  Ukiah  Mill- 
SAi's  presiding." 

The  entry  on  the  IStli,  or  the  day  previous  to  the  foregoing, 
was  as  follows:  "This  day  comes  the  district  attorney,  who 
prosecutes  on  behalf  of  the  state  of  Mississij)pi;  and  the  said  do- 
fendant,  being  brought  into  open  court  and  placed  at  the  bar 
thereof,  and  also  appearing  by  his  counsel." 

One  question  is,  whether  the  entry  of  the  19th,  to  wit:  "  Pres- 
ent, the  same  as  yesterday,"  is  an  affirmative  statement  of  the 
presence  of  the  accused.  Can  Ms  presence  l)e  InfoTeiL  even 
from  that  entry?  Does  the  entry  import  more  than  the  presence 
of  the  court  and  the  usual  officials?  As  to  the  motion  for  a  new 
trial,  the  record  says:  "  And  afterwards,  to  wit,  on  the  2Gth  day 
of  October,  1872,  being  the  eigliteenth  day  of  the  term,  the  fol- 
lowing procee<lings  and  orders  were  liad  and  enterwl  on  the  niiu- 
iites  of  said  court,  to  wit:  "  Then  follows  the  motion,  begin- 
ning with  the  title  of  the  cause,  and  proceeding  thus:  ''Tho 
defenJffnt  moves  the  court  for  a  new  trial,"  on  the  following 
grounds,  which  are  given  and  signed  by  counsel.  The  motion 
was  overruled,  and  then,  on  the  same  day,  follows  this  entry: 
(Title  of  the  cause.)    "  This  day  comes  the  district  attorney,  who 


]  # 


STUBBS  V.  STATE. 


609 


ecord. 

itively  show  that 
tlie  venliet  wiu 


ed,  tried  and 
made  here  is, 
sence  of  the 
t  it  does  not 
rvas  returned, 
overruled, 
e  accused,  on 
ber,  1S72,the 
on  which  last 
3'clock,  Octo- 
tnnent  of  jes- 
UiiiAii  Mill- 

he  fore^roin:;, 
ittorney,  who 
d  the  said  dc- 
id  at  the  bur 

3  wit:  "Prcs- 
entcnt  of  the 
nforeih  even 

the  preiienco 
ion  for  a  new 
the  2Gth  day 
:erni,  the  fol- 
d  on  the  niin- 
lotion,  be^'in- 
thns:  ''Tho 
the  following 

The  motion 
s  this  entry: 
attorney,  who 


prosecutes  on  behalf  of  the  state  of  Mississippi.  And  the  said 
defendant,  being  brought  into  open  co-i  placed  at  the  bar 
thereof,  and  caused  to  stand  up,"  etc.,  when  sentence  was  pro- 
nounced. 

Does  the  record  show,  affirmatively,  or  even  inferentially,  tlie 
presence  of  the  accused,  pending  the  motion  for  a  new  trial  ?  Is 
his  presence  necessary  on  a  motion  between  verdict  and  sen- 
tence? 

The  questions  raised  on  the  face  of  the  record  are  certainly 
very  technical,  and  as  the  attention  of  the  court  below  was  not 
called  to  the  points  now  made,  they  would  not  be  entertained  ex- 
cept in  higher  grades  of  crime.  1  IJish.  Cr.  Pr.,  ^§  422-42S ; 
id.,  §  G3S,  et  seq.;  id.,  §§  827,  829,  et  seq.;  Dyson  v.  Tlie  State, 
26  Miss.,  304;  Code,  §§  2799-2805;  id.,  §  2884;  Scagys  v.  The 
State,  S  S.  &  M.,  722. 

If  evidence  was  submitted  to  the  jury  on  the  day  the  verdict 
was  rendered,  as  the  record  appears  to  state,  then  a  constitu- 
tional right  was  denied  the  accused.  Const.,  art.  I,  §  7.  On 
this  point  the  record  is  indistinct. 

Another  and  material  rule  is  this,  that  the  verdict  in  cases  of 
felony  must  be  delivered  in  open  court,  and  in  the  presence  of 
the  prisoner.  1  Ch.  Cr.  L.,  030.  This  rule,  say  the  court,  in 
Price  V.  The  State,  30  ]Miss.,  531,  "is  founded  on  two  reasons; 
lirst,  the  right  of  tlie  defendant  to  be  present,  and  to  see  that  the 
verdict  is  sanctioned  by  all  tlie  jurors;  and  secondly,  in  order 
tliat  the  defendant,  if  convicted,  may  be  under  the  power  of  the 
court,  and  subject  to  its  judgment.  The  riglit  of  the  defendant 
to  be  ])resent  proceeds  upon  the  presumption  that  he  is  in  cus- 
tody, and  has  no  power  to  be  present,  nidess  ordered  by  the  court 
to  be  brought  into  court;  but,  under  our  law,  he  may  waive  that 
right.  If  he  is  not  in  custody,  so  as  to  be  deprived  of  the  powci- 
to  attend,  it  would  seeni  that  the  reason  of  the  rule  as  to  his  right 
to  bo  j>resent  would  fail;  for  he  is  voluntarily  absent  when  he 
ought  to  be  present,  and  cannot  coniidain  of  the  consequences  of 
his  own  voluntary  act."  The  voluntary  absence  of  the  defend- 
ant in  that  case  was  held  to  be  a  waiver  of  his  right  to  be  present, 
he  beinir  under  recoijnizance,  and  the  court  said:  "His  own 
illegal  act  should  not  l)e  permitted  to  thwart  the  process  of  the  law 
to  his  advantage."  lie  was  present  at  the  opening  of  the  trial, 
and  voluntarily  absented  himself  at  the  rendition  of  the  verdict. 
Vol.  I.— ;{9 


!      i 


^J 


, ,  1. 


■Ill 

mi 


n  ■ ' 


610 


AMERICAN  CRIMINAL  REPORTS. 


In  tlie  case  at  bar,  the  accused  was  in  the  custody  and  suhjoct 
to  the  orders  of  the  court. 

Scaggs  v.  The  State,  8  S.  «fe  M.,  722,  is  quite  analagous  to  tlic 
case  under  consideration.  It  was  insisted  in  that  case,  as  in  tiii? 
that  the  point  made  in  the  ai:)pellate  court  was  not  raised  in  tlio 
court  below.  Tlie  court  say:  "  The  error  whidi  first  protrudes 
itself  to  notice  is  the  circumstance  that  it  does  not  appear  tliat 
the  prisoner  was  present  during  the  whole  of  the  trial  of  the  in- 
dictment. The  only  evidence  of  his  presence  at  all  is  contained 
in  a  bill  of  exceptions,  where  hs  is  stated  to  have  asked  some 
questions  of  a  witness,  but  he  does  not  appear  to  have  been  con- 
fronted by  the  witness  against  him,  which  was  his  constitutional 
right.    Const.,  art.  1,  sec.  10. 

"  It  must  a])pear,  in  this  class  of  crimes,  that  tie  accused  was 
present  during  his  trial,  or  it  will  be  error.  The  ]n'e.>eiico  of  the 
prisoner  cannot  be  inferred,  but  must  appear  affirmatively,  ami, 
for  all  that  appears  in  this  record,  tlie  questions  directed  to  the 
witness  by  him  might  have  been  propoiuuled  in  writing." 

The  rule  declared  in  Seaggs  v.  The  State  is  repeated  in  Dy- 
son V.  The  State,  2G  Miss.,  383,  the  court  in  the  latter  ca?e  sav- 
ing: "that  the  record  must  affirmatively  show  tliei^e  indispenN'i- 
ble  facts,  without  which  the  judgment  would  be  void  —  sucli  as 
the  organization  of  the  court;  its  jurisdiction  of  the  subject  mat- 
ter, and  of  the  parties;  that  a  cause  was  nnule  U))  for  trial:  that 
it  was  submitted  to  a  jury  sworn  to  try  it;  that  a  ver.lict  was 
rendered  and  judgment  awarded."  And  it  is  added,  tliat  "out 
of  abundant  tenderness  for  the  right  secured  U)  the  aceiised  by 
our  constitution,  to  be  confronted  by  the  witnesses  against  liiiu, 
and  to  be  heard  by  himself  or  counsel,  our  court  lias  gone  a  stop 
further,  and  held  that  it  must  be  shown  by  the  record  that  the 
accused  was  present  in  court  pending  the  trial."  Thi,-,,  it  is 
further  said,  is  upon  the  ground  of  the  peculiar  sacrediiess  of 
this  high  constitutional  right. 

In  Wolf  d'.  George  v.  Martin,  1  IIow.,  30,  it  is  doehiivd  to  be 
"  an  acknowledged  princii>le  that  nothing  can  be  presumed  for 
or  against  a  record  except  what  appears  substjuitially  upon  its 
face." 

This  rule  is  ex])laincd,  in  Dyson  v.  The  State,  to  have  refer- 
ence "to  those  indispensable  requisites  necessary  to  the  validity 
of  the  record  as  a  judicial  proceeding,"  and  that  it  has  '*  nu  apitli- 


STUBBS  V.  STATE. 


611 


lIv  and  sulyoct 

lalagoiis  to  tlic 
case,  as  in  this, 
t  raised  in  tlie 
first  protrudes 
»t  appear  tliat 
trial  of  the  in- 
ill  is  contained 
re  asked  some 
lave  been  con- 
1  constitutional 

l.e  accused  was 
presence  of  tlie 
•niatively,  ami, 
ilirected  to  the 
rriting/' 
'peated  in  Dy. 
atter  case  say- 
use  indispensa- 
void  —  suc'li  as 
le  snitject  niat- 

for  trial;  tliiit 
:  a  verdict  was 
•led,  tliiit  ••  out 
:he  accuseil  !>}■ 
.'s  a^-ainst  liini, 
las  i^one  ii  step 
ecord  that  the 
."     Thi.-,,  it  is 

sacrodiiess  of 

deeliireil  to  l>o 

presumed  for 

tially  upon  its 

to  have  refer- 
to  the  validity 
has  "  uo  apj>li- 


cation  to  those  incidental  matters  which  transpire  (luring  the 
progress  of  the  proceeding  in  court." 

As  to  the  necessity  of  the  presence  of  the  accused  pending  the 
trial,  see  KeUi/  Ji  Little  v.  The  State,  3  S.  &.  M.,  528;  12  Wend., 
34i;  7  Cow.,  525;  13  Gratt,  7G3;  7  Ohio,  pt.  1,  180;  6  Ban-., 
584;  G  Ired.,  104;  5  Pike,  431;  10  Mod.,  248;  19  Johns,,  39; 
ri'im  V.  Commomeealth,  G  liar.  (Pa.),  103;  1  Park.  C.  C,  474; 
Jtcx  V.  Ilani^,  1  Ld.  Eayni.,  2G7;  4  liar.  (Pa.),  129;  31  Me., 502. 

The  rule  that  the  accused  in  cases  of  felony  must  be  present 
in  person  pending  the  trial,  and  that  this  must  be  affirmatively 
shown  by  the  record,  as  we  have  seen,  is  not  an  open  question 
in  this  state.     See  cases  cited  herein. 

Running  through  all  the  authorities  with  regard  to  this  rule, 
there  is  a  clear  distinction  between  felonies  and  misdemeanors. 
1  Eish.  Cr.  Pr.  §  684,  et  seq;  25  Vt.,  93;  19  Ark.,  214;  Sprague, 
227;  4  Cal.,  238;  1  Curtis,  C.  C,  433;  3  S.  &  M.,  518;  2  Hilt., 
523;  10  Vt.,  497;  2  C.  «&  P.,  413;  1  Salk.,  55;  12  Wend.,  344; 
3  Deiuo,  OS;  1  Ya.  Cas.,  172;  1  Parker,  C.  C,  360;  3  Burr., 
17SG;  4  liar.  (Pa.),  120;  7  Cow.,  525;  2  Den.  C.  C,  459;  G 
Eng.  L.  and  Eq.,  352. 

As  to  the  application  of  the  rule  to  motions  between  verdict 
and  sentence,  there  is  some  diversity  in  the  adjudications  to  the 
extent,  that  a  simple  question  of  law  may  be  argued  in  the  ab- 
sence of  the  accused,  but  the  lietter  opinion  is,  that  the  rule 
shoidd  be  adhered  to  in  felonies  from  the  arraignment  to  the 
linal  sentence.  1  Bish.  Cr.  Pr.  §  085;  14  Ind.,573;  1  Ch.  Cr. 
L,  492;  10  liar,  (Pa.),  04;  9  Cal.,  115;  1  Bish.  Cr.  Pr.  §  092. 

The  result  in  this,  as  in  many  similar  cases,  is,  of  course,  in 
conseijuence  of  the  neglect  of  the  clerk,  through  his  inexperience 
or  other  cause.  Hence,  a  special  obligation  devolves  on  circuit 
jut^ges  and  district  attorneys  to  see  that  the  entries  of  their  pro- 
ceeilings  are  jtroperly  niade.  \  careful  observance  of  this  duty 
would  leave  causes  to  be  determined  upon  their  merits. 

Wlien  the  life  or  liberty  of  a  human  being  is  involved,  there 
are  "  indispensible  reciuisites,"  as  stated  in  Dyson  v.  Tlie  State, 
which  can  not  be  overlooked  by  an  appellate  court.  The  observ- 
ance of  wdiich  can  not,  according  to  the  authorities  pited,  be  in- 
ferred or  presumed.  The  cost  and  trouble  to  the  state,  and  to 
parties,  caused  by  defective  records,  is  very  considerable,  and 
tills  expense,  might,  possibly,  be  not  unjustly  cast  upon  inatten- 


fc«',:| 


111 


n?r' 


iu 


612 


AMERICAN  CRIMINAL  REPORTS. 


tivc  clerkd.  If  not  corrected  by  these  admonitions,  legislation 
may  become  indispensable. 

The  judgment  in  this  case  will  be  reversed,  but  the  accused 
will  be  detained  in  custody,  subject  to  the  action  of  the  proj)  er 
court. 

Judgment  reversed,  cause  remanded,  and  a  new  trial  awarded. 


Wilson  vs.  Commonavealth. 

(10  Bush  (Ky.),  52fi.) 
Practice:    Proceedings  on  appeal  after  ]>risoncr's  esca2)e. 

Where  the  prisoner  has  escaped  and  remains  at  liirjfe  while  appeal  proec^'ilings 
are  pending,  the  court  will  on  motion  of  prosecution  dismiss  the  apixnil. 

CoFKR,  J.  The  appellant,  having  Ijeen  found  guiliy  of  tlie 
crime  of  murder  and  sentenced  to  be  confined  in  the  i^cnitcntiary 
for  life,  obtained  leave  to  apply  to  a  judge  of  this  court  Fdi-  an 
order  granting  an  appeal;  and  it  aj)peariiig  to  the  court  before 
which  he  was  tried,  that  there  was  danger  tbat  he  would  osc'iijje 
from  the  jiiil  of  that  county,  the  sheriff  was  ordered  to  transfer 
the  appellant  to  the  jail  of  Jefferson  county  for  safe  laoiiin<(. 
On  the  way  from  one  jail  to  the  other,  appellant  jun»]»od  fiom  a 
window  of  the  car  in  which  he  was  being  trans])orted,  and  niailo 
his  escape,  and  is  now  at  large. 

The  appeal  having  been  granted,  the  attorney  general  lias 
entered  a  motion,  based  on  an  affidavit  of  the  deputy  sluritl'. 
from  whose  custody  the  apjiellant  escaped,  to  disniis,-;  the  appeal 
on  the  ground  that  as  ajipeilatit  is  not  in  custody  to  abide  sueh 
judgment  as  may  be  rendered,  he  has  no  riglit  to  ]>roseentf  the 
appeal. 

It  seems  to  us  clear,  both  U])on  princij)le  ami  authority,  that 
the  motion  ouerht  to  be  sustained.  The  court  oUi;]it  not  to  do  a 
nugatory  act;  yet  if  we  ]»roceed  to  try  this  appeal,  the  ajipellant 
cannot  be  compelled  to  submit  to  our  decision  if  it  shuulil  he 
against  him,  and  ought  not  therefore  to  be  alh)\ved  to  reaj)  the 
benefit  of  a  decision  in  his  favor,  lie  might  thus  bt*  enaliled  tu 
defeat  the  ends  of  justice  entirely,  for  he  may  be  able  tu  keep 
beyond  the  reach  of  the  officers  until  l»y  the  death  or  removal  of 
witnesses  or  other  causes,  hiis  conviction  upon  a  second  trial 


ons,  legislation 

but  the  aocnscd 
1  of  the  pro])  er 

7  trial  awarded. 


s  escape. 

appeal  propi'H'.liujjs 
liss  tlio  apix.'iil. 

1  guilty  of  the 
he  [iCnittiitiary 
lis  court  f(»r  an 
he  court  l)L'f()re 
lie  would  oscaiie 
Ljred  to  transfer 
>v  safe  lat'iiiiii;. 
juui])ed  frmii  a 
orted,  and  made 

ley  general  lias 
!  deputy  slu'rirt". 
;iiiiss  the  appoal 
Iv  to  ahide  such 
to  jiroseciitf  tlio 

,  authority,  that 
ight  not  til  (III  a 
al,  the  aiipt'lhiiit 
if  it  should  be 
iwt'd  to  reap  the 
us  he  cnaiiled  tu 
be  able  to  keep 
th  or  removal  of 
i  a  second  trial 


;  r 


MOORE  V.  STATE, 

would  he  rendered  improhahle,  if  not  impossihle.  As  he  has 
chosen  to  undertake  to  relieve  himself  hy  flight,  in  contempt  of 
the  authority  of  the  court  and  of  the  law,  he  cannot  also  invoke 
the  aid  of  this  court. 

In  I'he  State  v.  liijypon,  2  Bay,  99,  it  was  held  by  the  su- 
preme court  of  South  Carolina,  that  wherever  corporal  punish- 
ment was  either  probable  or  certain,  the  defendant  should  be  in 
the  power  of  the  court  before  they  proceeded  to  hear  a  motion 
for  a  new  trial ;  and  the  court  refused  to  hear  an  argument  on 
the  motion,  but  directed  that  a  bench  warrant  be  issued,  that  the 
defendant  might  be  arrested  and  punished  purouant  to  the 
judgment. 

In  Jlex  V.  Teal  and  others,  11  East,  307,  two  persons  were 
jointly  indicted  for  a  misdemeanor,  and  were  tried  together  and 
convicted;  and  upoji  an  otl'er  by  one  of  them,  who  was  then  in 
court,  to  move  for  a  new  trial,  the  court  in([uired  if  both  were 
present,  and  being  informed  that  one  w\i3  absent,  refused  to  per- 
niit  the  motion  to  be  made,  because  a  new  trial  could  not  be 
granted  to  one  without  granting  it  to  the  other  also. 

The  motion  is  sustained  and  tlie  appeal  is  dismissed. 


MooKE  vs.  State. 
(44  Tex.,  595.) 

Pn.vcTicE:    Pfoceed'uKjs  on  appeal  after  prisoner's  escape. 

Where  the  prisoner  has  escaped  and  remains  at  large  while  appeal  proceedings 
are  pending,  the  court  will,  on  motion  of  tlic  prosecution,  dismiss  tlie  ap- 
peal, but  not  until  a  reasonable  time  has  elapsed  for  the  capture  or  surren- 
der of  the  prisoner. 

Moore,  J.  At  the  July  term,  1873,  of  the  district  court  of 
Fayette  county,  the  appellant,  Ilobert  Moore,  was  convicted  of 
the  crime  of  rape,  and  adjudged  to  be  contined  in  the  peniten- 
tiary for  the  period  of  twenty-flvc  years.  But,  having  prayed 
for  an  appeal  to  this  court,  sentence  on  the  judgment  was  stayed, 
and  he  was  committed  to  jail,  as  recpiired  by  law  in  cases  of  fel- 
ony, where  the  defendant  ai)i)eals,  until  the  decision  of  this  court 
could  be  rendered  in  saitl  appeal.  The  transcript  of  the  record 
was  filed  in  this  court  September  23, 1873.    On  the  13th  day  of 


I' 

k 


h    f 
54"  I 


.i:m 


614 


AMERICAN  CRIMINAL  RKPORTS. 


Febnmry,  1S74,  the  civso  comino*  (»n  tu  1x3  lifurd  by  tliid  cmirt  in 
the  reguhir  call  of  the  docket,  and  no  uppearance  beiiij^  made  for 
np])ellaiit,  tlie  attorney  general  suji^jf^ertted  that  a])pelhint  hiul 
escaped  from  the  jail  of  said  Fayette  county,  to  whidi  lie  hud 
been  committed  as  aforesaid,  ])endiiiii;  his  said  appeal,  on  the  ITtli 
of  October,  1S73,  as  shown  by  the  affidavit  of  the  sherill'of  siijd 
county  accomj)anyin_<^  said  motion,  and  moved  the  court,  on  uc- 
connt  thereof,  to  dismiss  said  ap])eal.  This  motion,  after  due 
consideration,  was  however  overruled. 

It  has  been  the  uniform  practice  of  this  court,  since  the  enaet- 
ment  of  the  law  rcquirinj^'  defendants  in  cases  of  felony  tu  he 
committed  to  jail  j)endin^  their  appeals,  to  refuse  to  consider 
such  appeals,  uidess  at  the  instance  of  the  state,  when  the  appol- 
hmt  has  escajied  from  the  custody  to  which,  as  recpiired  by  law, 
he  has  been  committed.  The  a]»pellant  will  not  be  heard  to 
question  the  c(»rrcctness  of  the  judj^ment  while  in  llaifrant  viohi- 
tion  of  the  autliority  of  the  court,  and  when  he  has  broken  the 
condition  upon  which  he  was  authorized  to  take  an  a])peal.  l.ut 
althou^di  the  court  lias  always  refused  to  permit  aj>i)ellants  to 
appear  by  counsel,  and  have  their  appeals  heard  and  decidetl  un- 
der such  circumstances,  it  has  never  held  that  the  mere  fact  of 
un  appellant's  escape  from  jail  forfeits  the  appeal.  It  susju'iidn 
the  ri<;lit  to  prosecute  it,  but  does  not  abro;^ate  the  jurisdi(!tioii 
of  this  court  on  it.  And  if  the  appellant  should  be  reca[»tiiro(], 
or  voluntarily  return  and  surrender  himself  tt)  the  custody  to 
which  he  was  committed,  he  mi^dit  then  ask  to  be  heard,  and  tlie 
court  will  consider  the  apj)cal,  and  if  the  judgment  is  found  to 
be  erroneous  it  will  be  revised. 

Hut  undoubtedly  there  must  be  some  period  of  time  after 
which  the  court  will  not  suffer  its  docket  to  be  incumbereil  and 
the  business  of  the  court  t(»  be  impeded  with  appeals  by  parties 
who  are  contemning  and  defying  the  law  in  virtue  of  whieh 
they  claim  the  right  to  bring  their  cases  to  this  court.  If,  after 
a  reasonable  delay,  of  which  the  court  must  judge  from  the  chiir- 
acter  and  circumstances  of  the  case,  the  appellant  fails  to  sur- 
render himself  to  legal  custody,  so  that  the  court  may  pro])er]y 
proceed  to  the  disposal  of  the  case  on  its  merits,  it  must  regard 
and  treat  the  appeal  as  voluntarily  abandoned  and  strike  it  from 
its  docket. 

There  has,  we  think,  quite  sufficient  time  elapsed  In  this  caso 


T 


LINE  t).  STATE. 


G15 


since  appc'llaiit\s  escape  fur  the  court  to  make  a  final  disposition 
of  it.  And  us  a  submission  of  tlie  case  on  its  merits  is  not 
asked  by  the  state,  and  it  is  not  shown  tliat  apjjellant  lias  been 
recaptured,  or  lias  v(duntarily  surrendered  himself  into  custody, 
iind  no  api)earance  has  been  made  for  him  in  this  court  by  coun- 
gcl,  his  appeal,  in  our  opinion,  should  now  be  dismissed.  And 
it  is  accordingly  so  ordered.  JJimnissed. 


Link  vs.  State. 
(51  Iml,  172.) 

riiACTiC'E:    ChxttKje  of  rviim  —Alibi  —  Etromous  charge. 

A  (k'fondant  ciui  luivc  but  ont;  chaiigo  of  venue  for  tlio  same  cause  iu  the  same 
cusi.',  and  when  lie  luus  had  tin;  cxse  removed  fi-oni  one  judge  on  the  ground 
of  bias  and  iircjudiee  on  the  i)art  of  such  judge,  he  cannot  have  it  removed 
from  another  jiid^'f  on  tlie  same  ground. 

A  charge  that  "evidence  of  an  alibi  is  evidence  of  a  suspicious  character"  is 
eiTor. 

It  is  error  to  refuse  to  cha'gc  ihat  in  a  criminal  case,  the  dcjfendaiit  is  presumed 
to  be  innocent,  and  before  he  can  be  convicted  the  state  must  prove  his  guilt 
beyond  a  rc'iV-<oiiable  doubt. 


)Sed  fn  this  caso 


BiDPLK,  C.  J.     Indictment  for  larceny  in  stealing  a  horse. 

It  apjicars  fnoa  the  record  that  the  lion.  IJernard  13.  Daily, 
tlic  judge  of  tlie  court,  had  been  employed,  before  his  appoint- 
ment, as  couii?el  for  the  apjiellant,  and  for  this  reason  was  inca- 
])acitatod  from  trying  the  case,  lie  therefore  called  the  lion. 
Edwin  P.  Hammond  to  ])reside  on  the  trial.  The  appellant 
moved  fur  a  change  of  venue  from  Judge  Hammond,  founded 
on  his  allidavit,  on  account  of  the  alleged  bias  and  prejudice 
against  him.  The  motion  was  granted.  Thereui)on,  Judge  Daily 
called  the  lion.  Edward  C.  IJuskirk  to  try  the  case.  The  appel- 
lant then  iik'd  his  atlidavit,  alleging  the  bias  and  prejudice  of 
Judge  IJuskirk  against  him,  and  moved  again  for  a  change  of 
venue  from  the  judge.  This  motion  was  overruled,  and  excep- 
tion taken. 

The  atlidavit,  we  think,  fulfills  the  requisites  of  the  statute;  but 
the  (piestion  arises,  Is  the  aj>pellant  entitled  to  two  changes  of 
venue  in  the  same  case  for  the  same  cause?    We  think  not.    The 


w  i\ 


%-l 


if** 


CIG 


AMERICAN  CRIMINAL  REPORTS. 


<     { 


i   I 


statute  nowhere  authorizes  a  second  change  of  venue  to  the  same 
party  for  the  same  cause.  The  court  had  no  more  power  to  grant 
a  second  cliange  than  it  would  have  to  grant  a  third,  fourth,  or 
fifth,  or  any  nimiber  of  clianges.  The  ends  of  justice  demand 
this  construction  of  the  statute,  otherwise  it  woukl  be  in  tlie 
power  of  a  defendant,  charged  with  a  criminal  oft'ense,  to  dcfuat 
a  trial  entirely. 

After  the  overruling  of  the  motion  for  a  change  of  venue  from 
Judge  I'uskirk,  the  appellant  was  arraigned,  and  ])leude<l  not 
guilty  to  the  indictment.  A  jury  trial  was  had,  which  resulted 
in  a  verdict  of  guilty.  A  motion  for  a  new  trial  was  made,  causes 
filed,  motion  overruled,  exception  taken,  and  appeal  to  this  court. 

At  the  proper  tiuie,  the  state  moved  the  court  to  instruct  tlie 
jury  as  follows:  "7.  Evidence  of  an  alibi  is  evidence  of  a  sus- 
picious character,  and  should  be  most  rigorously  sifted,  and  cau- 
tiously confided  in;  but  when  it  has  been  subjected  to  severe 
scrutiny,  and  ascertained  to  have  been  honestly  and  truthfully 
given,  it  should  have  e(pial  force,  with  the  same  weight  of  evi- 
dence on  any  other  subject." 

The  motion  was  sustained,  the  instruction  given  to  the  jury, 
and  exception  taken  by  the  appellant. 

It  seems  to  us  that  this  instruction  is  erroneous.  AVhy  evi- 
dence of  an  alidl  should  be  regarded  as  suspicious,  as  a  rule  of 
law,  any  more  than  evidence  of  any  other  defense,  we  cannot  per 
ceive.  Suspicious  evidence  is  a  fact  for  the  jury  to  consider,  imt 
a  rule  of  law  ap]ilieable  in  all  cases  to  the  defense  of  a(if/K  Such 
a  defense  may  be  stipported  by  unsu6])icious  evidence,  and  as 
honestly  made  as  any  other,  and  is  often  the  only  shield  of  inno- 
cence. And  we  think  whatever  defense  a  defeiulant  niay  law- 
fully make  should  not  be  subject  to  any  suspicion,  unless  the 
evidence  in  the  case  warrants  it.  There  is  a  presumption  of  law, 
in  certain  cases,  against  the  full  credibility  of  evidence,  as,  where 
the  witness  testifies  on  his  own  behalf,  or  on  behalf  of  his  near 
kindred,  or  of  those  in  close  relations  of  love  and  affection  to 
him,  or  where  he  is  interested.  In  sucli  cases,  the  riile  of  law  is 
founded  on  the  uniforinity  of  human  nature  in  its  disposition  to 
favor  and  shelter  those  it  loves,  and  to  protect  its  own  interests. 
We  know  of  no  such  rule  against  witnesses  because  they  hai)peu 
to  testify  concerning  an  aWri.  The  credibility  of  witnesses  must, 
in  all  cases,  be  left  to  the  jury,  whatever  may  be  the  subject 


LINE  r.  STATE. 


617 


0  to  the  same 
ower  to  grant 
rd,  fourth,  or 
atice  (leniand 
lid  be  in  tlie 
use,  to  defeat 

if  ven'.ic  from 
jdeaded  not 

hich  resnlted 
'  made,  causes 

to  this  court. 
0  instruct  the 
ence  of  a  sus- 
Pted,  and  can- 
ted  to  severe 
nd  truthfully 
veight  of  evi- 

n  to  the  jury, 

s.  AVhy  evi- 
s,  as  a  riile  of 
'0  cannot  jter 
<  consider,  not 
F  alihl.  Such 
dence,  and  as 
hield  of  iinio- 
ant  niay  law- 
)n,  unless  the 
iption  of  law, 
nee,  as,  where 
df  of  liis  near 
id  affection  to 
rule  of  law  is 
disposition  to 
own  interests. 
!  they  haj)|)eu 
itncsscs  must, 
)e  the  subject 


about  which  they  testify.     Suspicion,  falsehood  or  fraud  are  never 
jn-esumed;  they  must  be  shown  by  evidence. 

There  is  also  a  class  of  cases  wherein  presumptions  will  arise 
ao;ain8t  a  defendant,  as,  when  a  larceny  has  been  committed,  and 
the  stolen  goods  are  found,  immediately  or  soon  thereafter,  in 
the  possession  of  the  defendant,  or  when  counterfeiting  tools  are 
found  upon  the  person  arrested  for  passing  counterfeited  money; 
but  we  know  of  no  presumption  or  suspicion,  as  a  rule  of  law, 
ftfrainst  the  evidence  or  the  witnesses  of  a  defendant,  merely  be- 
cause he  attempts  to  prove  an  allhl  in  his  defense. 

In  the  case  of  Allmni  v.  The  State,  42  Ind.,  354,  this  court 
exi)ressed  the  following  rule,  to  which  we  adhere  : 

"  "When  the  trial  of  a  criminal  case  is  by  jury,  the  court  should 
not  lay  down  a!iy  arbitrary  rules  as  to  the  weight  they  are  to  give 
to  the  evidence  which  has  been  adduced.  They  are  the  judges 
of  the  facts,  and  must  be  left  to  weigh  the  evidence  and  consider 
the  motives  of  the  party,  without  any  rules  for  the  court  which 
will  compel  them  to  indulge  a  presumption  of  fact,  whether,  un- 
der all  the  circumstances,  they  think  they  ought  to  indulge  it  or 
not." 

If  it  should  be  thought  that  the  case  of  Jlowanl  v.  The  State, 
50  Ind.,  11M>,  conflicts  with  this  view  in  the  statement  of  the  in- 
structions, it  will  be  noticed  thsvt  the  case  was  decided  upon  an- 
other ground. 

This  court  has  frequently  held  that  sufHcient  evidence  of  al'ihi 
to  create  a  reasonable  doubt  in  the  minds  of  the  jury,  of  the  de- 
fendant's guilt,  should  result  in  an  ac(piittal.  Adams  v.  The 
fState,i2  ind,,  373;  ]Vi'ftt  v.  The  State,  iS  id.,  183;  Bimes  v. 
The  State.  46  id.,  311;  Kaufman  v.  The  State,  49  id.,  248. 

The  appellant,  at  the  proper  time,  ashed  the  court  to  instruct 
the  jury  as  follows: 

"  0.  In  a  criminal  case,  the  defendant  is  presumed  to  be  inno- 
cent of  the  crime  with  which  he  is  charged;  and  before  he  can  "be 
convicted  of  the  crime  with  which  he  is  charged,  the  state  must 
prove  him  guilty  of  the  crime,  beyond  a  reasonable  doubt." 

This  instruction  was  refused  by  the  court,  and  exceptions  taken 
by  the  appellant. 

We  think  the  refusal  of  this  instruction  was  error.    2  G.  &  H., 
415,  sec.  104;  Long  v.  The  State,  46  Ind.,  582. 
The  omission  to  give  this  instruction  was,  doubtless,  an  over- 


" 


B 


h.  '''i 


C18 


AMERICAN  CRIMINAL  RErORTS. 


sight  in  the  learned  judge  who  tried  the  case  below,  but  so  the 
record  is  nuule  up. 

There  are  several  other  instructions  asked  by  the  appellant, 
and  refused  by  the  court,  which  express  the  law,  but  as  tlioy 
were  given  by  the  court  on  its  own  motion,  in  substantially  the 
same  words,  the  refusal  was  not  erroneous.  IJut  as  to  the  sixth 
instruction,  above,  we  nuiy  say,  as  was  said  by  OsitcniN,  J .,  in  the 
ease  of  Lonyv.  The  State,  suj}/n,  that  "  we  have  carefully  exuin- 
ined  all  the  instructions,  and  iind  that  the  second  branch  of  that 
asked  and  refused  had  been  substantially  given,  but  they  were 
silent  as  to  the  j)resuinj)tion  of  innocence.  The  court  should 
have  charged  the  jury  on  that  subject,  as  asked,  and  an  error  was 
conuuitted  by  its  refusal  to  do  so." 

The  judgment  is  reversed,  cause  remanded,  with  directions 
to  sustain  the  motion  for  a  new  trial,  and  an  order  to  return  the 
prisoner. 


Hamilton  vs.  I*koi»le. 
(29  Mich.,  173.) 

Pbactice:  Prclimiiian/  cxamhuition — lii/onnatio>i — ^flsJohl(lc)•  of  foioi/.v  — 
Motion  to  quash  —  Erideiice  —  Motive  —  CrosN-ej-<imiiiiitioii  —  Contnulict- 
iiKj  irituvss  is  to  his  iiitircst  —  Iiitpcdchmeiit  of  irilms.i  —  I'ririlvijcd  nius- 
tions  —  Irrespoiisire  answer  —  Impeaching  question —  Testimony  of  arnnn- 
jtUce  —  Province  of  court  andjuri/  as  to  questions  (f  law  —  rrvsum/itlons  uj 
fact. 

A  plea  in  abak'iiient  to  iin  infonuation  filed  liy  a  prosciMitiiit,'  attorney, 
basoil  uiion  tlio  rotum  nuulo  to  liic  circuit  court  by  a  coiuiuittiii'?  masi'^tnitc , 
whidi  alleges  that  a  piu't  of  tlic  oxainination  wa.s  had  on  a  legal  holiday,  i.s 
bad. 

A  preliminary  examination  for  the  purpose  of  holding:  to  bail  is  not  a  judiciid 
proceeiling,  and  mere  irrei^ularitiea  do  not  vitiate  it. 

A  motion  to  <ina.sh  a  whole  information,  because  it  contaiiiH  some  olijectionublo 
counts,  will  not  prevail  wliere  there  are  some  counts  to  which  there  is  no 
legal  objection.    'J'he  motion  to  ijuash  should  sp(!cify  the  V>ad  counts. 

A  motion  to  quash  an  information  on  the  grouml  of  misjoinder  of  counts  is  »<]• 
dressed  to  the  discretion  of  the  court,  and  is  not  rt>viewable  on  writ  of  error. 

On  the  trial  of  an  information  charging  the  burning  of  property  with  intent  to 
defraud  insurers,  evidence  whicli  ti-nds  to  show  a  motive  is  admissible. 

A  statement  by  one  respondent,  made  the  day  iifter  the  commission  of  tiio 
crime,  is  not  aduiissible  against  his  co-respondont,  although  it  had  appeared 
that  there  was  a  conspiracy  between  them  to  connnit  the  crime, 


V,  but  so  tlio 

le  appellant, 
but  as  tlity 
tuntially  tliu 
to  tlio  sixth 
UN,  J.,  in  thu 
ufully  exaiii- 
anch  of  that 
ut  the}'  weru 
court  shuuld 
!iii  orror  was 

.h  directions 
o  return  the 


kr  of  coiDits-' 
II  —  Coiitnitlict- 
\'rlrilff/cil  ijiKn- 
iiioiii/  of  (icriiiii- 
I'rtsiiiii/jtioiis  I// 


utiii^f  altorni'v, 
tinjj  iuaj,'istniti , 
legal  lioliiliiy,  i.s 

s  not  a  judiciiil 

110  olijcctioiiiililo 
liii'li  tln'i-e  is  110 
il  counts, 
of  counts  is  iifl- 
f)ii  writ  of  cnor, 
y  with  intent  to 
ulinissibli?. 
iniissinii  of  tiic 
it  had  appeared 
me. 


HAMILTON  V.  PEOrLE. 


019 


TIio  resixjiident  has  a  viyht,  on  cross-exainination  of  a  witness  for  the  prosecu- 
tion, to  (haw  out  from  iiini  evidence  which  tends  to  contradict  materiul  cn- 
denco  which  has  lieen  jjjven  by  anothiT  witness  for  the  prosecution. 
Wliero  an  luiconiphoo  volunteeiB  to  testify,  in  a  criminal  case,  ho  must  testify 
fully,  and  may  bo  compelled  to  testify  a.s  to  statements  made  by  him  to  his 
counsel  with  regard  to  the  case,  and  it  seeiin:  that  the  counsel  may  also  bo 
compelled  to  testify  as  to  such  statements. 
It  is  proper  to  ask  a  sustaining  witness,  on  cross-examination,  whether  ho  had 

said  he  woulil  not  l)elieve  the  imiicached  witness  under  ixith. 
It  is  proper  to  ask  an  impeaching  witness,  who  luis  testiticd  to  the  bad  reputiv- 
tion  of  an  impeached  witness  for  truth  and  veracity,  whether  from  that  rep- 
utation he  would  believe  the  impeached  witness  under  oath. 
On  the   separate  trial  of  one  defendant  on  an  information,  some  counts  of 
which  charge  him  jointly  with  the  others,  and  some  of  which  do  not  charge 
the  otlense  jointly  against  all,  the  jury  should  not  be  allowed  to  consider 
any  count  in  which  all  are  not  jointly  charged. 
^Vhat  criMlit  is  to  be  given  to  the  testimony  of  an  accomplice,  whether  coiTobo- 
rated  or  uncon-oborated,  is  a  matter  exclusively  within  the  province  of  the 
jury. 
On  the  trial  of  a  criminal  case,  the  jury  are  not  judges  of  the  law,  but  it  is  the 
duty  of  the  jury  to  accept  and  act  upon  the  law  as  given  them  by  the  court. 
There  is  no  presumption  of  fact  which  is  not  entirely  withui  the  disiwsal  of  a 
jury  in  a  criminal  case. 

Ekuou  to  Cdlhorai  Circuit. 

Jirowii  t(;  Pttttei'son  and  M.  S.  Brackett,  for  plaintiff  in  error. 

Byroii  D.  Ball,  Attorney  General,  for  the  people. 

Cami'ijki.l,  J.  The  defendants  were  indicted  for  burning  a 
b.arn,  with  intent  to  defraud  an  insurance  company.  The  con- 
viction was  had  of  this  plaintiff  in  error  (defendants  below  being 
tried  se})arately)  upon  the  testimony  of  AVilliani  Fuller,  who  was 
sworn  as  state's  evidence.  Questions  arose  below  on  some  pre- 
liminary matters,  and  upon  the  sufficiency  of  the  information,  as 
well  as  on  points  ruled  at  the  trial. 

A  considerable  part  of  the  record  is  taken  up  with  the  various 
ruliuijs  and  proceedings  upon  pleadings  in  abatement,  which 
preceded  the  issue  of  not  guilty. 

The  plea  relied  upon  was,  in  brief,  that  the  complaint  before 
the  justice  of  the  peace  was  brought  on  for  examination  on  the 
21st  day  of  Febrmiry,  A.  D.  1872,  and  after  it  had  partly  com- 
iileted  it,  was  adjourned  until  the  22d,  when  some  further  testi- 
mony was  taken,  and  an  adjournment  was  had  until  the  23d, 
and  thereafter  the  proceedings  went  on  to  completion.    The  ob- 


it. 


020 


AMKRICAN  CRIMINAL  REPORTS. 


14 


jection  relied  on  is,  that  the  22d  of  February  being  not  ft  law 
day,  tlio  justice  lost  jurisdiction. 

This  is  all  that  aiipears  in  the  original  plea;  and  admitting  it 
to  be  true,  and  without  reference  to  the  subseiiuent  proceedings 
at  the  circuit  on  either  side,  m'o  do  not  think  it  can  be  sijstuined. 

The  justice  in  these  examinations  does  not  act  judicially,  in 
the  technical  sense,  but  in  his  capacity  of  a  conservator  uf  the 
peace,  and  the  jiroceeding  is  one  which,  at  common  law,  was  con- 
ducted very  nuich  at  discretion.  It  is  possible  that  the  regular- 
ity of  the  arrest  and  continued  custody  of  the  jirisoners  may 
have  been  open  to  (inestion;  but  we  have  found  no  authority  for 
holding  that  a  crin\iiuil  examination  before  a  justice  is  void,  if 
a  complaint  has  been  made  before  him  on  oath,  and  the  accustd 
are  finally  held  to  bail  or  committed  on  a  law  day,  upon  testi- 
mony taken  in  their  presence  in  pursuance  of  it.  "Whether  irregu- 
lar or  not,  we  find  no  authority  for  regarding  such  i)roceediiiics 
as  nullities.  AVe  can  see  no  reason  why  a  complaint  ])n»perly 
verified  should  cease  to  be  valid  to  maintain  an  examinatinii, 
unless  the  parties  accused  are  either  discharged  or  held  to  cdui- 
niitment,  so  long  as  there  is  no  substantial  break  in  the  proceed- 
ings. No  formal  record  is  required  to  be  kept  of  them,  and  the 
continuance  from  day  to  day  is  not  an  adjournment  of  such  a 
nature  that  the  failure  to  announce  it  would  be  of  mhv  conse- 
quence. The  proceedings  are  by  the  statute  c  itemplau'd  as 
continuous,  unless  formally  adjourned  f'"  k  to  time  mid 

the  close  of  business  on  one  day  would  ,  it  over  unt      rhc 

next  business  day,  as  a  matter  of  course,  Uh  s  other' vise  ordorod. 
The  adjour;.inent  to  the  22d,  if  illegal,  would  no'  interrupt  the 
legal  course,  Vt^hich  would  take  the  imittcr  over  to  the  23d;  and 
whether  the  justioe  did  or  did  not  consider  some  testiniony  which 
•was  not  admissiljle  because  irregularly  taken,  his  discretion  in 
ordering  the  commitment  cannot  be  reviewed  in  any  such  way 
as  proposed  here. 

The  plea  does  not  dispute  the  fact  that  there  was  a  prelimin- 
ary examination  upon  a  ])roper  complaint  before  a  nuigistrate 
having  jurisdiction,  resulting  in  a  commitment;  and  this,  we 
think,  was  all  that  was  necessary  to  justify  proceeding  by  in- 
formation. 

A  motion  was  made  to  quash  the  information,  resting  mainly 
on  the  misjoinder  of  counts,  the  insufficiency  of  some  of  them, 


g  not  ft  law 
(linittiiii,'  it 

H'UCL'etlill'rd 

(^urftiiiiiutl. 
Klii'ially,  in 
atur  of  tlio 
w,  was  c'uii- 
!»c  refill  lar- 
soiiers  may 
itliority  for 
3  iti  void,  if 
tlie  accusL'd 
upon  testi- 
tlier  iiTC''ii- 
n'oceedinics 
it  jn'oporly 
wainiiiatioii, 
old  to  ('(iin- 
le  proceed - 
3in,  and  tlic 
t  of  such  a 
ni\v  contJe- 
uiplau-d  as 
•  time,  and 
!•  unf      rho 
ise  ordered, 
terrnpt  the 
le  23d;  and 
lony  which 
scretion  in 
y  such  way 

preliinin- 
niai^istratc 
1  thi.s,  we 
ng  hy  lu- 
ng mainly 
e  of  tliem, 


l<!'  I 


HAMILTON  r.  PEOPLE. 


021 


and  the  want  of  a  preliminary  examination  upon  some  of  the 
charges. 

It  was  held  in  WuN/thnm  v.  People,  10  Mich.,  372,  that 
the  fact  of  examination  need  not  he  alleged  in  the  information, 
hut  that  the  objection  must  he  made  by  motion  to  quash,  or  plea 
in  ftl)atoment.  It  is  not  claimed  hy  the  motion  that  there  was 
no  examination,  hut  only  that  it  did  not  cover  all  the  counts; 
and  the  counts  objected  to  for  that  reason  are  not  specitied.  As 
the  motion  to  quash  the  whole  information  could  not  properly 
prevail  on  this  ground,  and  the  parts  objected  to  are  not  speci- 
tied, we  think  that  objection  was  not  tenable  in  the  form  resorted 
to.  The  question  of  misjoinder  is  more  serious,  and  rests  on 
different  gnninds. 

The  comi>laint  before  the  magistrate  and  the  information  arc 
both  so  confused  and  multifarious  that  the  court  below  might 
very  properly  have  declined  to  compel  defendants  to  go  to  a  trial. 
We  have  seldom  seen  pleadings  so  fairly  open  to  criticism  on 
this  liead.  Ott'enses  are  charged  to  which  all  the  defendants 
could  not  possibly  be  ameiuible.  Some  counts  charged  no  offense 
at  all;  others  contain  the  charges  upon  which  we  suppose  the 
trial  was  really  had,  and  upon  these  there  is,  we  thiidc,  uo  fatal 
objection,  as  the  rules  of  criminal  pleadings  under  our  statute 
justify  the  introduction  of  various  counts  charging  the  owner- 
ship of  the  property  burned,  and  the  position  of  the  respond- 
ents as  principal  or  accessorial  offenders  In  different  ways.  See 
An7i>sv.  J\'oj)h',  13  ^lich.,  oil. 

It  is  intimated  in  T/ie  Jvintj  v.  Kingston,  S  East,  41,  that  a 
demurrer  would  not  lie  to  the  whole  information  for  such  a  mis- 
joinder; but  that  the  pro])er  remedy  was  by  motion  to  quash. 
Such  a  motion  is  addressed  to  the  discretion  of  the  court.  It 
ought  to  be  granted  where  the  confusion  is  such  that  it  is  likely 
to  interfere  with  the  means  of  defending,  by  misleading  or  per- 
plexing the  prisoner  in  meeting  the  case  or  preparing  for  trial. 
]>ut  when  the  court  can  prevent  any  mischief,  as  it  usually  can, 
by  confining  the  proof  to  the  single  transaction  on  which  the 
defendant  was  examined,  or  on  which  the  prosecution  has  opened 
the  testimony,  or  by  coni])elling  an  election  in  the  outset,  no 
wrong  is  done  by  the  refusal  to  quash. 

We  do  not  hold  that,  under  our  statutes,  requiring  a  motion 
to  quash  in  lieu  of  a  motion  in  arrest  or  to  save  a  ground  of 


P 


632 


AJIERIC  iM  ORIMINAL  REPORTS. 


tw. 


fv 


^1  4 


error,  such  a  motion  is  always  discretionary.  But  sucli  a  moti(in 
for  misjoinder  appears  to  be  discretionary.  1  ]?ish.  Cr.  Proc, 
§  447;  T/ie  King  v.  Kingston,  8  E^st,  41. 

Where  the  various  counts  may  all  refer  to  the  same  transac- 
tion, the  safer  course  usually  is,  undoubtedly,  not  to  quash,  but 
to  rcgnlate  tlie  proof  on  the  trial  as  far  as  may  be  necessary  to 
prevent  surprise  or  the  misleading?  of  the  prisoner,  and  to  con- 
fine it  to  that  transaction.  See  Rex  v.  Young,  li.  &  Ry.,  2S0 
(n.);  Rex  v.  Ellis,  G  B.  &  C,  145;  Anoiiynious,  2  Leach  C.  C, 
1105. 

"VVe  had  occasion  at  the  last  term  to  consider  and  sustain  tlio 
propriety  of  allowing  proof  of  tlie  entire  transaction,  in  Pcojde 
V.  3/(1  r ion,  and  Van  SieA'le  v.  People. 

"We  think  there  was  no  ruling  below  whicli  we  can  properly 
review,  which  rendered  it  erroneous  to  ])ut  respondents  to  their 
trial,  altliough  the  misjoinder  was  gross  and  improper. 

The  court  on  the  trial  regarded  the  case  as  one  where  tlio 
offense  was  that  of  burning  proj^erty  with  intent  to  defraud  in- 
surers; and  it  was  tried  entirely  on  that  theory.  The  (pictitiuns 
raised  and  discussed  on  the  e.\cc]>tions  and  charge  are  to  be  con- 
sidered in  view  of  such  a  state  of  facts. 

Tlie  theory  of  the  prosecution  depended  entirely  on  the  evi- 
dence of  the  respondent  Fuller,  who  swore  to  a  j»lan,  made  in 
advance,  to  burn  the  barn  ;n  question  by  putting  a  liglited  can- 
dle in  a  place  where,  as  it  burned  low,  it  would  reach  litter  and 
other  combustible  material,  and  set  it  on  tire.  It  was  to  operate 
like  a  slow  match.  There  is  no  lirect  evidence  of  the  guilt  (if 
anv  of  the  defendants,  but  thev  were  convicted  on  circunistaiUial 
evidence,  which  derived  its  force  chieily  as  explained  by  Fuller's 
testimony  concerning  the  previous  avrrangement.  AVith  that 
out  of  the  case,  or  discredited,  no  conviction  could  have  been 
justified. 

The  first  ruling  objected  to  and  mentio-.  -d  on  tlio  arg-.nncnt, 
related  to  the  admission  of  certain  chancerv  records,  showiu'' 
that  in  ISOO,  a  bill  was  filed  to  rescind  the  conveyance  of  the 
land  on  which  the  barn  was  situated.  The  gnunnl  set  up  in  the 
bill  was  fraud  alleged  to  have  been  practiced  by  Thomas  \V. 
Hamilton  and  one  >«athaniel  l>a<lger.  The  objfct  of  this  testi- 
mony was  claimed  to  be  to  establish  a  motive  to  account  for  the 
destruction  of  the  property,  by  showing  a  dispute  affecting  title. 


ell  a  motion 
Cr.  Proc, 

me  trail  sac- 
quash,  but 
iieoessary  to 
and  to  con- 
&  Ttv.,  2S0 
^each  C.  C, 

sustain  tlio 
»,  in  2\yij)le 

an  properly 
-■nts  to  their 
er. 

3  where  the 
defraud  in- 
le  (|uesti(ins 
e  to  be  con- 
on  the  evi- 
an,  ma<le  in 
lii^'hted  C.III- 
•h  litter  and 
is  to  ojH'rato 
the  iruilt  nf 
■cuinstantial 
by  Fuller's 
AVith  that 
I  liave  been 

'  arij:iiiient, 
Is,  showin/j; 
ance  of  the 
I't  up  in  the 
Thomas  AV. 
f  this  testi- 
lunt  for  the 
L'cting  title. 


^ffr 


HAMILTON  t:  PEOPLE. 


623 


It  was  admitted  against  the  Dbjection,  and  the  court  afterwards 
refused  to  strike  it  out. 

AVe  are  inclined  to  think  that  evidence  of  an  existing  contro- 
versy of  that  sort  would  have  some  bearing  on  the  question  of 
motive,  although  there  may  be  difficulty  in  guarding  it  so  as  to 
prevent  the  jury  from  passing  upon  the  facts  of  that  controversy, 
which  could  not  lawfully  be  done.  But  it  appeared  from  these 
files  that  the  case  was  brought  to  an  issue  on  bill,  answer  and 
replication,  more  than  a  year  1  fore  the  fire,  and  that  no  proof 
had  been  taken.  As  it  was  then  too  late  to  take  proofs,  and  the 
answer  denied  the  equity  of  the  bill,  and,  therefore,  as  the  case 
then  stood,  the  defendants  were  vindicated,  we  can  see  no  reason 
for  permitting  the  bill  to  be  introduced;  and  allowing  it  to  bo 
received  as  evidence  that  respondents  had  a  motive  to  burn  tho 
insured  property  was  injurious  and  erroneous.  Still  more  ob- 
lectionablc  was  the  introduction  of  foreclosure  proceedings  com- 
menced after  the  fire,  which  could,  under  no  circumstances,  fur- 
nish proof  of  a  motive.  The  condition  of  the  title  at  the  time 
of  the  fire  was  open  to  proof  more  directly,  and  could  not  prop- 
crlv  l)e  shown  in  this  way.  Xo  other  legitimate  inquiry  could 
have  been  aided  by  any  proceedings  ex  j>ost  facto. 

Obieclion  was  made  to  the  reception  of  certain  evidence  of  the 
amount  of  hay  in  the  barn,  that  there  was  no  valid  count  charg- 
ing the  burning  of  anything  but  the  barn,  and  that  respondents 
had  not  been  examined  upon  such  a  charge.  "We  think  that  the 
fact  of  the  fullness  or  emptiness  of  the  barn  might  have  a  very 
clear  be<iring  ujion  the  (juestion  of  motive  in  burning  the  barn, 
and  we  can  see  no  reason  for  excluding  any  circumstance  show- 
ing the  extent  of  the  lire  and  of  the  property  burned.  The  whole 
triinsaction  was  properly  open  to  the  jury,  and  they  were  entitled 
to  understand  it  all. 

The  testimony  of  Kobert  P)illin,r>-iey,  that,  in  a  conversation 
four  or  five  months  after  the  fire,  J.fendant,  when  asked  whether 
he  could  keep  the  farm,  said  "he  did  not  care;  that  he  had  got 
a  good  insurance  on  the  house,  and  it  might  go  to  blazes,  with 
the  barn,"  was  not,  we  think,  prooi;  of  any  ad  -ussion  that  the 
barn  had  been  burned  by  defenc^ant,  and  that  was  the  only  point 
on  which  it  can  be  claimed  it  had  any  relevancy. 

AVe  also  think  the  defendant,  Thomas  W.  Hamilton,  could  not 
properly  be  charged  with  the  false  statement  of  William  Ham- 


G24: 


AMERICAN  CRIMINAL  RErORTS. 


m. 


i'n^m:i 


ilton.  It  was  not  a  part  of  the  res  gestw.  It  could  not  aid  in 
defrauding  the  insurance  company,  in  any  way,  and  must  be  re- 
garded as  an  independent  assertion  or  act,  within  the  excludino- 
rule  in  People  v.  Knapp,  26  Micl.'.,  112.  It  does  not  aj»pear 
sufficiently  under  what  circumstances  a  remark  about  insurance 
and  the  probability  of  more  fires  was  said  to  have  been  made 
by  the  respondent,  James  Hamilton,  and  we  cannot,  therefore, 
determine  it  to  have  been  erroneously  admitted.  The  same 
rule  will  apply  to  the  impeaching  testimony  on  Van  Valken- 
burgh's  statements  about  AVilliam  Hamilton. 

We  can  find  nothing  which  could  render  it  admissible  for  the 
witness  Iliram  Allen  to  detail  what  was  said  by  the  witness  Let- 
tie  Campbell  concerning  tiie  facts  which  occurred  the  night  of 
the  fire.     It  is  hearsay,  pure  and  simple. 

Henry  Hamilton,  being  called  by  the  prosecution,  gave  testi- 
mony concerning  wliat  took  place  at  a  certain  party  or  dance  at 
James  Hamilton's  the  night  of  the  fire.  Joeing  asked  on  cro:-»- 
examination  whether  the  dance  was  not  talked  of  some  time  be- 
fore it  was  got  up,  this  was  objected  to.  The  defense  stated  that 
they  proposed  to  show  it  was  talked  of,  and  invitations  given  a 
week  -r  ten  days  before  hajid.  The  court  ruled  out  thecpiestiun, 
and  the  defense  excepted. 

To  understand  the  bearing  of  the  question,  it  will  be  necessary 
to  refer  to  the  account  given  by  Fuller,  of  the  proposed  plan  for 
burning  the  barn.  That  was,  in  substance,  that,  in  order  to  pre- 
vent any  suspicion,  a  dance  should  be  got  up  at  another  ])erson'3 
house,  and  that  during  the  course  of  the  evening  one  of  the 
Ilamiltons  was  to  go  out  for  a  supply  of  cider,  and  take  advant- 
age of  that  opportunity  to  light  tlie  candle,  which  would  take 
some  time  to  burn  down  to  the  struw,  so  that  they  sliould  bo 
away  at  the  party  at  the  time  the  fire  should  break  out,  and  so 
escape  sus])icion.  If  the  party  had  been  arranged,  and  invita- 
tions given  earlier  than  the  alleged  interview  with  Fuller,  his 
whole  story  would  be  falsified.  This  was,  then,  a  vital  }>oint  in 
the  case.  It  was,  very  clearly,  legitimate  cross-examination, 
upon  the  st  ,•,  test  rules.  It  referred  to  the  very  dance,  con- 
cerning which  the  witness  had  been  examined  in  chief,  and  was 
quite  as  relevant  to  the  subject  as  any  of  the  other  circumstances 
on  which  he  had  been  questioned.  The  objection  that  it  would 
not  contradict  Fuller  would  not,  if  true,  destroy  its  relevancy. 


HAMILTON  V.  PEOPLE. 


625 


Id  not  aid  iu 
must  be  re- 
he  excludiiiir 
3  not  aj.puar 

>ut  insurance 

0  been  nuide 
lot,  therefore, 
.  Tlie  same 
Van  Yalken- 

ssible  for  the 

1  witness  Let- 
.  the  ni<^]it  of 

n,  gave  testi- 
;y  or  dance  at 
ked  on  cror^s- 
unie  time  ho- 
se stated  tliat 
tions  given  a 
;  tlie  (|uestiun, 

1)e  necessary 
losed  phm  for 

order  to  ]»re- 
•ther  ])erson's 
^  one  of  the 

take  advaut- 
1  wonkl  take 
ey  sliuuUl  bo 
V  out,  and  so 
1,  and  invita- 
h  Fulk'r,  liis 
k'ital  jioint  in 
■examiuatioii, 
f  (huice,  con- 
hief,  an<l  was 
iircuinstances 
that  it  would 
ts  relevancy. 


But  whether  it  would  do  so  or  not  would  be  a  question  of  fact. 
Fuller  swore  that  the  conversation  took  place  three  or  four  day^ 
before  the  dance,  and  it  might  be  longer.  This  last  qualification 
could  not  operate  so  indefinitely  as  to  cover  a  much  longer  period ; 
and  even  if  it  did,  the  defense  had  a  right  to  have  the  subject 
fully  investigated.  But  Fuller  swore  positively  that  the  dance 
was  to  be  the  next  Monday  ev'fening,  which  would  at  any  rate 
confine  the  preparations  within  a  week.  The  court  erred  in 
shutting  out  this  proof. 

We  think,  also,  that  when  Houseman  had  sworn  to  seeing  the 
three  Ilamiltons  apparently  consulting  together  after  the  fire,  the 
defense  should  not  have  been  precluded  from  cross-questioning 
him  as  to  the  force  of  the  impression  made  on  him  at  the  time, 
and  as  to  the  persons  to  whom  he  first  mentioned  it.  It  is  only 
by  thorough  sifting  that  it  can  be  known  how  much  a  witness 
has  allowed  his  memory  to  be  warped  by  subsequent  suspicions. 
Undoubtedly  the  real  meaning  of  what  is  seen  is  not  always 
understood  at  the  time,  and  therefore  it  does  not  follow  that  a 
witness  who  had  no  suspicions  until  afterwards  may  not  have 
observed  and  remembered  accurately.  But  whether  he  has  done 
go  or  not  can  never  be  unimportant.  The  conclusiveness  of  cir- 
cumstantial evidence  depends  entirely  on  the  assurance  that 
facts  have  been  truly  seen  and  sworn  to. 

It  was  manifest  error  to  refuse  to  allow  Ribble  to  be  impeached 
by  testimony  to  contradict  his  denial,  on  cross-examination,  of 
the  part  he  had  taken  in  getting  up  testimony.  This  was  deci- 
ded in  Gcanj  v.  Peoj)le,  22  Mich.,  220.  But  we  do  not  think 
the  evidence  of  Ids  statement  in  other  cases,  or  generally,  of  his 
being  open  to  bribery,  comes  within  any  recognized  rule  of  im- 
peachment, unless  they  have  made  him  a  reputation  for  un- 
truthfulness; and  then  it  is  only  the  reputation  which  is  ad- 
missible, and  not  its  cause.  It  was  not  error  to  allow  a  witness 
to  be  asked  if  he  had  deserted,  or  another  witness  to  be  asked  if 
he  had  been  charged  with  crime.  There  was  no  attempt  to  ina- 
peach  by  contradiction  on  these  collateral  matters,  and  the  an- 
swers were  admissible. 

It  seems  to  us  that  the  impeachment  of  Fuller,  by  Young  ..nd 

Jane  Shutly,  should  have  been  received.     He  had  been  asked 

about  his  stjitements  to  them  concerning  his  testimony  in  this 

case,  and  had  denied  making  such  statements.    Yet  Fuller's  au- 

Vol.  I.- 40 


626 


AMERICAJ4  CRIMINAL  REPORTS. 


M 


Bwer  as  to  Yonng  was  ruled  out,  and  Jane  Sliutiy  was  not  al- 
lowed to  answer.  The  place  and  time  were  fixed  with  reasona- 
ble certainty,  no  objection  for  uncertainty  being  made,  when  he 
was  cross-examined,  and  his  answers  having  been  positive  and 
sweeping,  his  statements  that  he  had  been  offered  a  bribe,  and 
would  swear  to  it,  were  material. 

The  same  remark  will  apply  to  the  impeachment  of  Tlionias 
Mnlvaney  by  Nelson  Howe,  where  time  and  place  were  fixed 
accurately,  and  the  fact  was  recent.  "We  do  not  see, however,  on 
what  principle  testimony  could  have  been  received  concerning 
the  conversation  of  James  Mnlvaney,  who  had  not  been  sworn, 
and  was  a  stranger  to  the  record  in  the  circuit  court. 

"We  are  also  of  o]>inion  that  the  testimony  in  regard  to  j)laying 
cards  in  the  barn  with  lights  should  have  been  allowed  to  be 
fully  given.  Fire  might  take  from  such  a  cause,  and  the  defense 
were  entitled  to  show  all  circumstances  reasonaldv  bearinj;  on 
such  a  possibility. 

Several  qtiestions  of  an  impeaching  nature  were  excluded  on 
the  groimd  that  Fuller  had  made  them  to  his  counsel,  and  they 
were  therefore  privileged.  "We  think  the  rule  of  ])rivi]ege  was 
misunderstood.  "We  have  no  disposition  to  narrow  or  hanipei- 
privileged  communications  between  clients  and  tlieir  attorneys 
or  counsel.  "We  concur  fully  in  the  broad  and  sensible  doctrine 
laid  down  by  Lord  Selborne,  in  Minet  v.  Morgan,  L.  11.,  8  Ch. 
Ap.,  301,  that  neither  client  nor  attorney  can  l)e  coinpelkd  to  an- 
swer and  disclose  matters  of  confidence.  But  the  privilege  is  one 
created  solely  for  the  benefit  of  the  client,  and  ihero  is  no  ground 
for  protection  where  he  waives  it.  1  Greenl.  Ev.,  §'J4;>;  1  Stark. 
Ev,,  40;  Benjamin  v.  Covcjitry,  19  "Wend.,  So."*.  AV hen  a  co- 
defendant  in  a  criminal  case  turns  state's  evidence,  and  has  at- 
tempted to  convict  others  Ity  proof  also  convicting  himself,  he 
has  no  right  to  claim  any  privilege  concerning  any  of  the  facts 
bearing  upon  the  issue.  He  has  waived  all  privileges  which 
would  permit  him  to  withhold  anything.  Fonter  v.  l\<>plc,  IS 
;Mich.,  200.  It  was  expressly  held  in  Alderman  v.  People,  -t 
Mich.,  414,  that  this  waiver  covered  confidential  comnmnica- 
tions  to  attorneys,  and  there  is  no  more  reason  for  saving  these 
than  for  saving  the  privilege  against  criminating  disclosures 
conclusively  waived.  Both  client  and  counsel  may  be  compelled  to 
disclose  the  client's  statements  which  are  pertinent  to  the  issue. 


:!:ii 


HAMILTON  t'.  PEOPLE. 


627 


y  was  not  al- 
with  reasoiui- 
lade,  when  lie 
1  positive  and 
cl  a  bribe,  and 

nt  of  Tlionias 
,ce  were  fixed 
e,  liowever,  on 
ed  concerninir 
ot  been  sworn, 
rt. 

ard  to  jdaying 
allowed  to  be 
nd  the  defense 
>lv  bearing  on 

3  excluded  on 
nsel,  and  they 
])rivile<,'n  was 
ow  or  hamper 
heir  attorneys 
usilde  doctrine 
',  L.  11.,  S  Ch. 
•inpelltil  toan- 
)riviloge  is  one 
'C  is  no  fifroiind 
§L>4:5;  1  Stark. 
.  When  a  co- 
cc,  and  has  at- 
ig  himself,  he 
V  of  the  facts 
vile^es  which 
V.  J\»J>/i.,  IS 
I  V.  /*(;r>j>le,  i 
1  coinniunica- 
r  saving  these 
ig  disclosures 
e  compelled  to 
it  to  the  issue. 


A  witness,  "William  Gayton,  having  been  sworn,  to  sustain 
Fuller's  reputation  for  truth  and  veracity,  was  asked  whether  he 
had  not  said  at  a  certain  time  atul  jdace  that  he  would  not  be- 
lieve Fuller  under  oath,  and  answered  that  he  did  not  thiidc  he 
had  done  so  at  that  time,  but  that  it  was  likely  he  might  have 
said  so  at  the  time  of  Fuller's  arrest  for  this  crime.  This  an- 
swer was  stricken  out  as  not  responsive.  lie  was  then  asked 
whether  the  arrest  aftected  his  opinion  of  Fuller  one  way  or  the 
other.  This  was  ruled  out,  as  well  as  a  proposition  to  show  his 
statement  to  dift'erent  persons  to  the  same  eftect,  that  he  would 
not  believe  Fuller  under  oath. 

The  objection  that  the  answer  was  not  responsive  was  one 
which  did  not  concern  the  prosecution,  if  it  was  relevant.  The 
party  examining  a  witness  may  sometimes  object  to  volunteered 
and  irresponsive  statements  made  by  a  witness  aside  from  his 
questions.  But  if  he  is  willing  to  accept  the  answer,  and  if  it  was 
one  he  would  have  had  a  right  to  elicit,  the  opposite  party  can- 
not complain.  There  are  cases,  as  in  Oreennicmv.  O'Connor, 
25  Mich.,  30,  where  the  deposition  of  a  witness  is  taken  on  set- 
tled written  interrogatories,  where  an  answer  not  called  for  may 
be  objected  to  by  either  party  for  surprise,  inasmuch  as,  if  the 
question  had  been  so  put  in  writing  as  to  call  for  it,  other  inter- 
rogat(»ries  might  have  been  framed  accordingly,  which  might 
have  led  to  exi)lanation.  Jjut  no  such  difficulty  can  arise  where 
the  witness  is  examined  openly  and  orally,  and  where  a  question 
calling  for  such  an  answer  would  have  been  competent.  Was  it 
proper  then,  to  ask  a  sustaining  witness,  on  c^ss-examination, 
whether  he  had  said  he  would  not  believe  the  impeached  witness 
under  oath? 

The  purpose  of  any  inquiry  into  the  character  of  a  witness  is, 
to  enable  the  jury  to  determine  whether  he  is  to  be  believed  ou 
oath.  Evidence  of  his  rei)utation  would  be  irrelevant  for  any- 
other  purpose,  and  a  re])Utation  which  would  not^  atiect  a  wit- 
ness so  far  as  to  touch  bis  credibility  under  oath,  could  have  no 
proper  influence.  The  Knglish  text  books  and  authorities  have 
always,  anil  without  exception,  retpiircd  the  testimony  to  be 
given  directly  on  tliis  issue.  The  questions  put  to  the  impeach- 
ing and  supporting  witnesses  relate,  lirst,  to  their  knowledge  of 
the  reputation  for  truth  and  veracity  of  the  assailed  witnesses; 
and,  second,  whether  from  that  reputation  they  would  believe 


■  1          ■].    '  yi 

1'  '^  >'^iii«y 

:.      V  i 

V-  ■  4 


62S 


AMERICAN  CRIMINAL  REPORTS. 


him  under  oath.  The  only  controversy  has  been,  whether  or  no 
tlie  ground  of  belief  must  rest  xipon  and  be  confined  to  a  knowl- 
edge  of  re])n  Nation  for  veracity  only.  But  confined  to  that,  the 
authorities  are  harmonious.  1  Stark.  Ev.,  237,  <?^  *^2'. ;  2  Pliil. 
Ev.  (Edw.  ed,),  955,  958.  A  very  recent  decision  is  fomul 
in  Qneen  v.  Brown  t&  Tledley,  L.  11.,  1  C.  C.  II.,  70. 

The  reason  given  is,  that  unless  the  impeaching  witness  is  held 
to  showing  the  extent  to  which  an  evil  reputation  has  aftected  a 
person's  credit,  the  jury  cannot  accurately  tell  what  the  witiitfis 
means  to  express  l)y  stating  that  such  reputation  is  good  or  had, 
and  can  have  no  guide  in  weighing  his  testimony.  And  sinco  it 
has  become  settled  that  they  are  not  bound  to  disregard  u  Mit- 
ness  entirely,  even  if  he  falsifies  in  some  matters,  it  boconios 
still  more  imiwrtant  to  know  the  extent  to  which  the  opinion  in 
liis  neighborhood  has  touched  him.  It  has  also  been  commonly 
observed  that  impeaching  questions  as  to  cliaracter  arc  often 
misunderstood,  and  witnesses,  in  spite  of  caution,  base  their 
answers  oji  bad  character  generally,  which  may  or  may  nut  he 
of  such  a  nature  as  to  impair  confidence  in  testimony.  AVlien  the 
question  of  credit  under  oath  is  distinctly  presented,  the  answers 
will  be  more  cautious. 

Until  Mr.  Greenleaf  allowed  a  statement  to  creep  into  liis 
work  on  evidence,  to  the  efiect  that  the  American  authorities  dis- 
favored the  English  rule,  it  was  never  very  seriously  (luestioned. 
See  1  Greenl.  Ev.,  §  401.  It  is  a  little  remarkable  that  of  the 
cases  referred  to,  to  sustain  this  idea,  not  one  contained  more 
than  a  i)assing  dictum  not  in  any  way  called  for.  PhUlipxr. 
King,  1  Ajipleton  (Me.),  375.  The  authorities  referred  to  iu 
that  case  rjntained  no  such  decision,  and  the  court,  after  reiisi til- 
ing out  ''le  matter  somewhat  carefully,  declared  the  (juestioii 
was  not  presented  by  the  record  for  decision.  The  AiniM-icau 
editors  of  Phillips  and  Starkie  do  not  a])i)('ar  to  have  discovered 
any  such  conflict,  and  do  not  allude  to  it.  They  do  however,  as 
many  decisions  do,  refer  to  the  kind  of  reputation  which  should 
be  shown,  and  whether  of  veracity  or  of  other  (pialities.  In  Wih- 
herv.  ir<ntks,  4  ]Vri(di.,  19s,  no  (piestion  came  up  on  tlie  record 
except  as  to  the  P]>ecics  of  reputation,  and  the  neighborliood  and 
time  of  its  existence;  aiul  what  was  said  further  was  not  in  the 
case,  and  cannot  properly  dispose  of  the  matter.  The  objectini; 
alleged  to  such  an  answer  l»y  a  witness  is,  that  it  eimbles  the 


HAMILTON  V.  PEOPLE. 


62U 


1,  whether  or  no 
ined  to  a  knowl- 
ined  to  tliat,  the 

et  seq.\  2  Phil. 
jcision  is  found 
,70. 

ir  witness  is  held 
311  has  affected  a 
vhat  tlie  witness 
1  is  good  or  had, 
r.  And  since  it 
disregard  a  wit- 
;ters,  it  ])econio6 
h  the  opinion  in 

been  commonly 
racter  are  often 
tion,  base  their 
y  or  may  not  he 
iiony.  AVhen  the 
ited,  the  answers 

I)  creep  into  liis 
[1  authorities  dis- 
)usly  (inestioned. 
cable  that  of  the 
!  contained  nidro 
'or.  Phillips  r. 
IS  referred  to  iu 
urt,  after  reason- 
red  the  (juestion 
The  Americiin 
)  have  (lisci)veri'd 
>y  do  iiowever,  as 
on  which  should 
ualities.  In  11' i- 
ip  on  the  record 
leighborhood  and 
er  was  not  in  the 
The  objectioi; 
at  it  ei\aMes  thu 


vi-itness  to  substitute  his  opinion  for  that  of  the  jury.  But  this 
is  a  fallacious  objection.  The  jury,  if  they  do  not  act  from  per- 
sonal knowledge,  cannot  understand  the  matter  at  all  without 
knowing  the  witness'  opinion,  and  the  ground  on  which  it  is 
based.  It  is  the  same  sort  of  difficulty  which  arises  in  regard  to 
insanity,  to  disposition  or  temper,  to  distances  And  velocities,  and 
many  other  subjects,  where  a  witness  is  only  required  to  show 
his  means  of  information,  and  then  state  his  conclusions  or  be- 
lief based  on  those  means.  If  six  witnesses  are  merely  allowed 
to  state  that  a  man's  reputation  is  bad,  and  as  many  say  it  is 
good,  without  being  questioned  further,  the  jury  cannot  be  said 
to  know  much  about  it.  Nor  would  any  cross-examination  be 
worth  much  unless  it  aided  them  in  finding  out  just  how  far  each 
witness  regarded  it  as  tainted. 

So  far  tis  the  reports  show,  the  American  decisions,  instead  of 
shaking  the  English  doctrine,  are  very  decidedly  in  favor  of  it, 
and  have  so  held  upon  repeated  and  careful  consideration,  and 
we  have  not  been  referred  to,  nor  have  we  found  any  considerable 
conflict.  See,  in  New  York,  People  v.  Mather^  4  Wend.,  229 
(which  was  the  view  of  Judge  Oaklkv,  no  opinion  being  given 
by  his  associate);  People  v.  Itector^  19  Wend.,  569;  People  y. 
Davis,  2i  id.,  309;  in  New  Hampshire,  Titm  v.  Ash,  4  Fost., 
319;  in  Pennsylvania,  Boyle's  E.c'rs  v.  Kreitzer,  46  Pa.  St., 
•1G5;  Lyman  v.  Philadelphia,  56  id.,  -ISS;  in  Maryland,  A'';i/<//(ii 
V.  House,  29  Md.,  194;  iu  California,  Stevens  v.  Irwin,  12  Cal., 
bOC;  People  v.  Tyler.  35  id.,  553;  in  Illinois,  Eason  v.  Chap- 
man,''11  111.,  33;  in  Wisconsin,  Wilson  v.  State,  S  Wis.,  798; 
in  Georgia,  Stokes  v.  State,  18  Ga.,  17;  Taylor  v.  Smith,  16 
id.,  7;  in  Tennessee,  Ford  v.  Ford,l  Humph.,  92;  in  Alabama, 
McCnichen  v.  McCtitchen,  9  Port,  650;  in  Kentucky,  Mohley 
V.  Ilamit,  1  A.  K.  Marsh.,  590;  also  in  Judge  McLean's  circuit, 
in  U.  S.  V.  Van  SicMe,  2  McLean,  219. 

Mr.  Greenleaf  himself  intimates  that  it  might  be  a  proper  in- 
quiry on  cross-examination.  We  think  the  inquiry  proper  when 
properly  confined  and  guarded,  and  not  left  to  depend  on  any 
basis  but  the  reputation  for  truth  and  veracity.  And  we  also 
think  that  the  cross-examination  on  impeaching  or  sustaining 
testimony  should  be  allowed  to  be  full  and  searching. 

Where  an  impeached  witness  has  changed  his  domicile,  there 
appears  to  bo  no  objections  to  showing  his  reputation  in  both 


m 


tl 


lIH 


n 


630 


AMERICAN  CRIMINAL  REPORTS. 


places  within  a  reasonable  limit  of  time.  But,  as  the  only  object 
is  to  know  whether  he  is  to  be  believed  at  the  time  when  he  tes- 
tifies, a  witness,  knowing  his  reputation  then,  should  state  that 
tnowledge,  although  he  may  also  bo  authorized  in  addition  to 
show  what  his  reputation  had  been  elsewhere  before. 

The  court  should  not  have  permitted  the  jury  to  consider  any 
counts  except  those  that  charged  all  the  defendants  or  any  except 
those  which  related  to-  the  burning  with  intent  to  defraud  tlie  in- 
Burers.  No  others  specified  any  offense  of  which  all  couhl  pussi- 
bly  have  been  guilty,  and  upon  the  rest  there  should  have  hoeu 
a  (discontinuance  or  acquittal. 

The  testimony  of  Fuller,  as  an  accomplice,  was  properly  left 
to  the  jury  to  believe  or  not,  whether  standing  alone  or  eurrolj- 
orated.  It  was  for  them  to  determine  ti)  what  extent  they  could 
credit  him,  and  all  of  the  circumstances  of  his  employment  uinl 
conduct  were  proper  to  be  considered  as  affecting  his  credit,  and 
they  should  have  been  so  instructed.  Ihit  they  could  not  l)e  di- 
rected what  force  to  give  to  these  nnvtters.  That  was  their  own 
province.  While  a  jury  cannot  be  compelled  to  disregard  all  the 
testimony  of  a  witness  who  has  wilfully  falsified,  yet  they  .nay 
do  so  if  they  do  not  trust  it.  In  such  a  case  they  know  the 
witness  is  not  restrained  by  his  oath,  and  they  need  not  pay  any 
respect  to  his  statements  beyond  what  they  actually  consider 
them  to  deserve.  The  fact  that  his  evidence  is  more  or  less  cor- 
roborated,  does  not  in  such  a  case  lead  to  any  necessary  inference 
that  all  the  facts  he  has  sworn  to  are  true.  The  jury  will  deter- 
mine for  themselves  how  far  they  can  trust  it,  and  should  nut 
have  been  directed  that  there  was  any  condition  on  which  thty 
were  forbidden  to  reject  such  testimony,  if  they  did  not  believe  it. 

The  circuit  court  was  asked,  but  refused,  to  give  the  follo\vi;i- 
instruction:  "This  is  a  criminal  trial  on  an  information  for  felony, 
and  all  the  questions  of  law  and  fact  in  the  case  are  exclusively 
for  the  jury,  and  the  jury  are  paramount  judges,  both  of  law  iuid 
facts."  The  court  held  they  were  judges  of  law  and  fact  muler 
some  restrictions  and  conditions,  but  not  in  the  absolute  way  in- 
dicated. The  precise  definition  of  the  rights  of  a  jury  in  crim- 
inal cases  is  easier  undeystood  than  expressed.  Their  decision 
upon  the  guilt  or  innocence  of  a  prisoner  can  never  be  directly 
reviewed,  and  upon  an  acquittal  there  can  be  no  new  trial.  Hut 
if  they  have  the  legal  authority  claimed  in  the  request,  their  ver- 


HAMILTON  V.  PEOPLE. 


631 


the  only  object 
lie  when  lie  tes- 
liuuhl  Htiito  tliat 

in  addition  to 
tore. 

to  cuniiider  any 
it:?  or  any  except 

defrand  tlie  in- 

all  conld  [xjssi- 

liould  have  liofu 

vas  jiroperly  left 

alone  or  eorrob- 

xtent  they  coiilj 

LMuployment  a!id 

Lj  hirt  credit,  and 

conld  not  he  di- 

at  was  their  own 

disrc<ifard  all  tlie 

id,  yet  tliey  may 

c  they  know  the 

need  not  pay  any 

ictnally  consider 

more  or  loss  cor- 

'cessary  inference 

J  jury  will  detiT- 

,  and  shonld  n^t 

n  on  which  tlioy 

J  id  not  believe  it. 

ive  the  following' 

nation  for  felony, 

■e  are  oxclusivuly 

,  hoth  of  law  ami 

\v  and  fact  under 

absolute  way  iu- 

:  a  jury  in  crini- 

Their  decision 

icvor  be  directly 

new  trial.    I'lit 

equest,  their  ver- 


dict of  guilty  would  he  of  the  same  force  as  their  acquittal.  In 
this  country,  for  a  long  time  ]mst,  e.xceptions  have  been  usually 
allowed  to  the  rulings  of  the  court  on  the  trial,  and  if  those 
rulings  are  erroneous,  the  conviction  will  he  set  aside.  But  this 
can  only  he  upon  the  idea  that  the  jury  are  expected  to  follow 
the  charges  given;  and  it  is  as  contrary  to  law,  as  usually  admin- 
istered, to  refuse  to  give  a  i)roper  charge,  as  to  give  an  improper 
one.  And  if  a  judge  weie  to  decline  to  give  any  charge  —  as  he 
might,  if  it  is  of  no  importance  —  it  has  been  assumed  that  he 
would  violate  his  duty. 

The  law  does  not  favor  unnecessary  intrusions  by  one  func- 
tionary upon  grounds  of  others.  But  the  charge  of  a  judge  in 
criminal  cases  is  one  of  the  ancient  and  traditional  incidents  of  a 
trial,  which  must  have  been  introduced  for  some  purpose,  and 
must  have  some  value.  It  is  certain  that  there  is  a  great  body 
of  authority,  holding  it  to  be  meant  for  the  guidance  and  instruc- 
tion of  the  jury,  and  entitled  to  their  respect.  It  is  true  that 
juries  in  criminal  cases  cannot  properly  find  a  conviction  against 
their  conscience.  It  is  al.-o  true  that  they  cannot  be  (piestioned 
or  held  responsible  upon  their  verdict,  nor  called  on  to  explain 
its  reasons.  Whether  those  reasons  are  based  on  a  doubt  or  dis- 
belief of  evidence,  or  on  a  rejection  of  the  exposition  of  law  given 
by  the  court,  they  are  ecj^ually  beyond  review.  At  common  law, 
a  conviction  was  as  final  as  an  accpiittal,  and  could  only  bo  re- 
lieved by  a  jiardon.  And  it  is  very  well  understood  that  this 
immunity  from  censure  or  review  is  necessary  to  liberty.  A 
jury  cannot  be  compelled,  in  dealing  with  crimes,  to  separate 
the  facts  from  the  law.  The  right  to  give  a  general  verdict  is 
essential  to  the  integrity  of  the  system,  and  all  attempts  to  de- 
])rive  juries  in  eriminal  cases  of  that  power  have  been  opposed  as 
destructive  of  the  system;  and  experience  has  shown  that  special 
verdicts  in  such  cases  have  not  been  favorable  to  justice.  We 
need  not  hesitate  to  determine  that  it  is  within  the  power  of 
juries  to  act  upon  their  own  view  of  the  law.  But  it  does  not 
follow  from  this  that  the  law  does  not  assume  that  they  will  re- 
spect the  instructions  of  the  court. 

The  power  of  juries  in  criminal  and  civil  cases  is  the  same  in 
kind,  though  different  in  degrees.  The  practice  of  disregarding 
or  relieving  against  wrong  verdicts  in  civil  cases  is  one  largely 
of  modern  growth.     In  early  times,  verdicts  were  substantially 


AMERICAN  CRIMINAL  REPORTS. 


conclusive.     In  modern  timee,  tliongli  tlicy  inny  be  set  nsiilo, 
tliey  cannot  be  reviewed  or  altered;  and  setting  aside  verdicts,  us 
against  law,  is  a  matter  of  discretion,  and  not  of  riglit.     An  up- 
pellute  court  can  only  review  tbe  action  of  tlie  judge,  not  tbat  of 
the  jury;  and  this,  tuo,  is  not  by  virtue  of  the  old  law,  but  by 
force  of  statutes,  which,  though  ancient,  are  yet  later  in  origin 
than  jury  trials.     The  jury  system  is  generally  regardetl  as  do- 
riving  one  of  its  chief  advantages  from  having  the  law  applied 
to  the  facts  by  persons  having  no  prominent  offices  as  nuigis- 
trates,  and  who  are  not  likely  to  get  into  the  habit  of  disregard- 
ing  any  circumstance  of  fact,  or  of  f(trcing  cases  into  rigid  forms 
and  arbitrary  classes.     It  is  especially  important,  where  guilt  de- 
pends on  a  wrong  intent,  to  give  full  weight  to  every  circuin- 
stancc  that  can  possibly  all'ect  it;  and  professional  persons  ure 
under  a  constant  temptation  to  make  the  law  symmetrical  by 
disregarding  small  things.     Hut  it  is  necessary  for  ])ublic  and 
private  safety,   hat  the  law  shall  be  known  and  certain,  and  sliuU 
not  depend  on  each  jury  that  tries  a  cause;  and  the  interpreta- 
tion of  the  law  can  have  no  jiermanency  or  uniformity,  and  can- 
not become  generally  known,  except  through  the  action  of  courts. 
It  may  be  fairly  regarded  as  one  of  the  best  features  of  the 
jury  system,  that  the  law,  though  interpreted  by  ])rofessional  in- 
terpreters, can  only  be  applied  to  facts  through  the  understand- 
ing of  ordinary  men  of  average  capacity,  and  usually  including 
in  their  number  some  of  Very  simple  minds.     ]>y  this  process  it 
is  divested  of  all  that  would  not  be  readily  comprehended  by  all 
men.     In  this  way,  over-nicety  and  technicality  become  less  dan- 
gerous, if  not  absolutely  harmless;  and  an  apparent  deviation  in 
the  verdict  from  the  rules  laid  down  is  often  no  dej)ariure  from 
the  rules  as  supposed  to  be  laid  down. 

But  if  the  court  is  to  have  no  voice  in  laying  down  these  rules, 
it  is  obvious  that  there  can  be  no  security  whatever,  either  that 
the  innocent  may  not  be  condemned,  or  that  society  will  have 
any  defense  against  the  guilty.  A  jury  may  disregard  a  statute 
just  as  freely  as  any  other  rule.  A  fair  trial  in  time  of  excite- 
ment would  be  almost  impossible.  All  the  mischief  of  ex  pod 
facto  laws  would  be  done  by  tribunals  and  authorities  M-holly 
irresponsible,  and  there  would  be  no  method  of  enforcing  with 
effect  many  of  our  most  important  constitutional  and  legal  safe- 
guards against  injustice.     Parties  charged  with  crime  need  the 


be  8i;t  aside, 
lo  verdicts,  113 

ht.  All  ap- 
e,  not  tl\iit  of 

law,  but  by 
iter  in  ori<!;iu 
;!ir(U'(l  as  do- 
e  hvw  appl  it'll 
ies  art  magis- 
of  ilisrt'ganl- 
o  rif^id  forms 
lere  ^iiilt  do- 
very  circuni- 
,  ])erson8  are 
unietrical  by 
)r  ]»\ibiic  and 
ain.  and  shall 
ic  interpreta- 
lity,  and  caii- 
;ion  of  courts, 
atures  of  the 
•ofcssional  in- 
;  nnderstand- 
dlv  includiii'' 
bis  process  it 
lended  by  all 
onie  less  dan- 
t  deviation  in 
j])ariure  from 

;\\  tbese  rules, 
r,  either  that 
ety  will  have 
Lizard  a  statute 
lie  of  excite- 
ef  of  ex  pod 
orities  wholly 
nforcing  with 
,nd  le^al  safe- 
•ime  need  the 


HAMILTON  v.  TEOrLE. 


C33 


protection  of  tlie  law  against  unjust  convictions,  quite  as  often 
as  tbe  public  needs  it  against  groundless  aci^uittals.     Neither 
can  be  safe  without  liaving  the  rules  of  law  deiined  and  pre- 
served, and  beyond  tlio  mere  direction  of  anyone.    AVo  must 
construe  the  jury  system,  like  all  other  parts  of  our  legal  fabric, 
in  the  light  of  history  and  usage.     It  came  into  this  country  as 
a  part  of  our  common  law,  and  it  has  been  fixed  by  our  constitu- 
tions as  a  known  and  regular  common  law  institution.    Liko 
many  of  our  best  heritages  from  that  source,  we  know  what  it  is, 
better  than  bow  it  was  devised,  or,  wbicli  is  more  probable,  came 
into  use  witbout  devising.    We  must  look  to  the  use  as  evidence 
of  tlie  law;  and,  looking  to  that,  we  find  that  tbe  judge  has 
always  assumed  to  give  the  jury  instructions  xipon  the  law.    AVe 
find,  further,  that  while  there  have  been  severe  complaints  and 
stern  measures  to  secure  them  from  his  control  on  the  facts, 
there  has  never  been  any  attempt  to  abolish  the  practice  of 
charging  on  the  law.     All  the  improvements  in  mitigation  of 
the  old  system  have  gone  upon  the  ground  that  the  jury  were 
expected  to  follow  the  instructions  of  the  court.    The  introduc- 
tion of  reserved  cases  and  criminal  exceptions  would  be  little 
short  of  an  absurdity  on  any  other  theory.     If  there  were  any 
o-rounds  of  comjdaint,  it  would  not  be  for  wrong  instructions, 
but  for  i-iving  any  charge  at  all.    There  is  much  difficulty  in 
dealin*'  with  arguments  which  assume  to  qualify  a  system,  and 
vet  are  not  consistent  with  its  uniform  history.    A  jury  system 
without  a  presiding  judge  who  is  something  more  than  a  puppet 
is  not  the  jury  system  which  we  have  inherited. 

It  would  not  be  profitable  to  collate  or  discuss  the  authorities 
at  leno'th.  They  dift'er  in  terms  more  than  in  substantial  re- 
sults. If  the  charge  is  proper,  it  can  only  be  so  because  it  is  to 
be  respected.  If  juries  disregard  it,  they  may  be  free  from  per- 
sonal risk,  and,  in  case  of  acquittal,  their  verdict  is  conclusive. 
But  their  power  to  do  wrong  with  impunity  does  not  make 
wron"  right.  The  same  thing  cannot  be  lawful  and  unlawful 
when  done  by  diflierent  persons. 

We  understand  the  uniform  practice,  and  the  decided  weight 
of  opinion,  to  require  that  the  judge  give  his  views  of  the  law  to 
the  jury  as  authority,  and  not  as  a  matter  to  be  submitted  to  their 
review.  And  while  we  recognize  the  power  of  the  jury  to  give 
wrong  verdicts,  or  to  disregard  the  law,  we  are  nevertheless  war- 


§-■'■■11 


084 


AMERICAN  CRIMINAL  RErORTS. 


irilj 


ranted  by  ustvj^o  and  authority  in  liolding  tliat  such  conduct 
■Would  be  iin  abuse  of  tlieir  discretion,  which  could  only  Ik;  piilli- 
ated  by  8\icli  tyrannical  and  perverbo  instructions  as  their  ^ood 
eense  slunild  teach  them  could  not  possibly  be  true  or  just. 

This  (question  was  presented  many  years  aj^o  to  the  then  sn- 
premc  court,  but  for  some  reason  the  decision,  if  made,  has  not 
been  rejtorted,  and  is  n'>t  found.   People  v.  iSnj)jde,  January,  lS5o. 
There  is  uiuloubtedly  some  diiterenco  between  civil  and  crim- 
inal cases  in  re<,'ard  to  lej^al  presunij)tions,  which  will  ])revent  a 
judi;e  from  instructin<?  a  jury  in  the  same  way  as  to  their  wciijht. 
This  was  soniewhat  discussed  in  the  case  of  Mahcr  v.  J*ettj)Ic,  lo 
Mich.,  212.     It  is  very  well  remarked  by  a  modern  writer  on  evi- 
dence,  that  "  artificial  presumptions  can  never  be  safely  estab. 
lished  as  means  of  proof  in  a  criminal  case.     To  convict  an  in- 
nocent man  is  an  act  of  positive  injustice,  which,  accordiiii^  to 
one  of  the  best  and  most  humane  ])rinciples  of  our  law,  cannot 
be  expiated  by  the  conviction  of    an  hundred   criminals,  who 
might  otherwise  have  escaped.     2  JIale,  2S0.     From  such  pre- 
sumptions the  common  law  is  justly  most  abhorrent,  and  happily 
our  statute-book  has  not  been  disgraced  by  many  violations  of  the 
liuniane  principles  of  the  common  law  in  this  respect."    Stark. 
Ev.,  143,  note  f,  ed.  of  18(59.     There  is  no  conclusion  or  ])resump- 
tiou  of  fact  which  is  not  entirely  within  the  disposal  of  the  jury, 
as  it  is  also  entirely  for  them  to  determine  what  portion  of  testi- 
mony to  believe  or  disbelieve,  and  "it  is  the  conscience  of  the 
jury  that  must  pronounce  the  prisoner  guilty  or  not  guilty."    2 
Hale,  313.    Ibit  while  the  rules  of  crimiiud  law  narrow  the  func- 
tions of  the  judge,  they  do  not  abrt>gate  those  functions. 

Some  err(»rs  are  alleged  concerning  the  dealings  of  the  C(»in't 
with  (questions  of  fact.  The  jury  were  very  fully  directed  that 
they  must  decide  upon  the  facts  for  themselves,  and  we  do  not 
discover  any  instructions  to  the  contrary,  of  such  a  nature  as  to 
call  for  further  comment.  The  particular  errors  of  this  kind 
mentioned  in  the  argument  do  not  apj)ear  material,  or  in  any 
way  calculated  to  mislead,  and  need  not  be  referred  to,  unless 
upon  the  question  of  intent.  It  is  possible  the  language  used  in 
that  regard  may  have  gone  too  far,  but  we  do  not  deem  it  neces- 
sary to  discuss  it,  as  the  judgment  is  reversed  on  other  grounds, 
and  it  is  not  likely  that  such  a  question  will  arise  again  on  a  new 
trial. 


HAMILTON  V.  PEOPLE. 


035 


ich   conduct 

Hly  'h!  palli- 

is  their  j,'()od 

Di*  just. 

the  then  ru- 

Dule,  has  not 

uniary,  Is.W. 

il  and  criiii- 

ill  i)revent  a 

their  wci;,'ht. 

f.  Peiiph,  1(> 

riter  on  l'\  i- 

safely  estah- 

•iivict  an  in- 

aceurdinir  to 

•  law,  cannot 

niinals,  who 

in  such  pre- 

imd  happily 

iitions  of  the 

ect."    Stark. 

or  i)resuinp. 

I  of  the  jury, 

tion  of  testi- 

cienco  of  tlie 

^Miilty."     2 

i)W  the  func- 

ions. 

of  the  coin-t 
lirected  that 
|<1  we  do  nut 
nature  as  to 
i»f  this  kind 
vl,  or  in  any 
!J  to,  nnle>.s 
nai^e  used  in 
em  it  neces- 
ler  grounds, 
^in  on  a  new 


Xeither  are  wo  disposed  to  discuss  the  (piestion  concerning  the 
precise  limits  of  a  reasonahlo  douht.  The  jury  were  told  they 
could  not  convict  without  heinj^  satisfied  to  a  moral  certainty, 
and  that  defendant  was  entitled  to  the  presumption  of  innocence 
till  every  branch  of  the  case  should  be  established  against  him  by 
evidence.  They  were  also  told  that  if  they  found  a  single  ma- 
terial  fact  inconsistent  with  his  guilt,  they  could  not  convict.  It 
is  very  possible  that  the  definition  by  the  court  of  a  reasonable 
doubt,  as  being  such  a  one  as  would  prevent  the  jurors  from  act- 
ing in  their  most  important  concerns,  would,  if  standing  alone, 
have  been  of  questionable  sufficiency.  Yet  whether  correct  or 
not,  it  could  certainly  have  done  no  harm  with  the  aid  of  tho 
other  instructions  given. 

l)Ut  we  do  not  think  that  juries  can  derive  any  help  from  at- 
tem])ts,  by  numerous  and  complicated  requests,  to  explain  what 
would  be  very  much  plainer  without  them.  If  a  jury  cannot  un- 
derstand their  duty  when  told,  they  must  not  convict  when  they 
have  a  reasoiuible  doubt  of  the  prisoner's  guilt,  or  of  any  fact 
essential  to  j)rove  it,  tliey  can  very  seldom  get  any  help  from 
such  subtleties  as  may  require  a  trained  mind  to  distinguish. 
Jurors  are  presumed  to  have  common  sense,  and  to  understand 
common  English.  But  they  are  not  presumed  to  liave  profes- 
sional, or  any  high  degree  of  technical  or  linguistic  training. 
The  majority  of  s))ecial  re(iuest3  in  this  case,  on  both  sides,  might 
have  been  omitted  with  advantage;  and  if  the  jury  came  to  a 
wrong  conclusion  —  on  which  we  have  no  right  to  speculate  —  wo 
do  not  conceive  that  any  course  that  might  have  been  taken,  in 
regard  to  most  of  the  questions  propounded,  would  have  relieved 
them  from  their  difficulties. 

For  the  reasons  we  have  given,  the  judgment  must  be  reversed 
and  a  new  trial  granted,  and  the  respondent  must  be  remanded 
into  the  custody  of  the  proper  sheritf,  to  be  held  in  custody  un- 
til bailed  or  otherwise  dealt  with  according  to  law. 

Cooi.KY,  J.,  and  Guavks,  C.  J.,  concurred.  Ciiristiancy,  J., 
did  not  sit  in  this  case. 

Note.  —  In  Lindsay  v.  People,  G3  N.  Y.,  143,  it  was  said  that,  "  Although  it  is 
not  usual  to  suffer  a  conviction  upon  the  wholly  uncon-oborated  testimony  of  an 
accomplice,  and  juries  are  advised  not  to  convict  without  a  confirmation  as  to  the 
material  facts;  still  if  tlie  jury  are  fully  convinced  of  the  truth  of  the  statement  of 
a  witness  thus  situated,  they  may  comict  upon  his  testimony  alone."    The  court 


I. 


I   I 


636 


AMERICAN  CRIMINAL  REPORTS. 


further  say  "  It  beinjf  merely  a  rule  of  practice  and  not  of  law,  that  an  accom- 
plice should  be  coiToboratcd  to  justify  a  conviction  upon  his  evidfmce,  it  is  not  essscn- 
tial  that  the  continuation  when  offered  should  jwint  directly  to  the  defendant,  if  it 
is  of  any  part  of  the  niat4?nal  statt^nents  of  the  witness,  the  question  beiny  in 
all  cases  whether  the  jury  under  all  tlie  evidence  will  believe  the  uncorroborated 
part  of  the  testimony." 


I     l^     \t 


hi'  V ill  (If 


Barclay  vs.  State. 

(55  Ga.,  179.) 

Practice:    Disposing  of  mortgaged  property. 

Under  an  indictment  for  fraudulently  disix)'tintf  of  niortfr-itred  property  it  is 
not  udniissiljle  to  allege  in  the  indictment  and  prove  on  the  trial  a  mis- 
take in  the  description  of  the  mortgaged  property  in  the  mortgage. 

Jackson,  J.  The  clet'emlant  was  indicted  under  se<  '■  in  4000 
of  tlw  Code,  for  luiving  sold  and  disposed  of  a  certain  bay  hoi'tte 
mnle,  after  having  mortgaged  the  said  mule  to  the  mortg.vgoe, 
with  the  intent  to  defraud  the  mortgagee.  It  was  alleged  in  the 
indictment,  that  hy  mistake  the  mortgage  descrilied  the  animal 
as  a  bay  mare  mule.  Evidence  was  admitted  to  show  the  mis- 
take, and  the  defendant  was  convicted.  Vv'e  think  the  court 
erred  in  admitting  the  evidence,  and  that  the  conviction  is  ille- 
gal. In  a  civil  case,  this  evidence  may  be  admissible,  but  in  a 
criminal  case,  we  hold  it  is  not,  where  the  instrument  in  writing 
is  the  basis  of  the  prosecution. 

The  judgment  is,  therefore,  reversed. 


State  m.  Neely. 

(74  N.  C,  425.) 

Assault  and  Batteuy  with  Inte.s't  to  Commit  Rape:    AssnuU  —Enilence, 

On  an  indictment  for  assaidt  and  battj^ry  with  intent  to  commit  rape,  the  o\i- 
dence  waH  sulwtantialiy  ;is  follows :  The  prosecutrix,  a  white  woman,  having 
part4.'<l  fi'oni  a  conn)anion,  start*.'d  to  go  home  alone  through  tlie  \fooi1s. 
She  heard  the  respondent,  a  negro,  ojUI  out  to  her  to  "stop,"  and  .i:iw  him 
running  afttir  her  about  seventy  yards  away.  She  began  to  nm  ii.s  hard  as 
she  could,  and  was  pursued  V>y  the  respondent,  who  called  to  her  to  stop 
three  times,  and  was  catching  up  with  her.    He  pursued  about  a  quarter  of 


STATE  V.  NEELY. 


637 


a  niilo  through  the  woods,  when  coming  to  the  edge  of  the  woods  he  saw  a 
dwolHng  house  near  by,  and  turned  back  and  ran  off.    It  was  held: 

That  tliere  was  sutttcient  evidence  of  an  assault. 

That  there  was  sufficient  evidence  of  the  intent  to  commit  rape. 

Rodman  and  Bvnum,  JJ.,  cEssenting. 

Indictmknt,  for  an  assault  with  intent  to  commit  a  rape,  tried 
before  Schkxck,  J.,  and  a  jury,  at  fall  term,  1875,  of  the  superior 
court  of  Cabarrus  county. 

It  was  in  evidence  that  on  the  10th  of  July,  1875,  the  prose- 
cutrix, a  woman  over  ten  years  of  age,  and  a  young  girl  were 
returning  home,  along  the  track  of  the  North  Carolina  Railroad, 
a  few  miles  from  Concord.  When  they  reached  a  point  on  the 
railroad  at  which  a  country  road  crossed  the  same,  the  prose- 
cutrix and  the  girl  separated.  The  road  taken  by  the  prosecutrix 
led  through  .a  woods  about  a  quarter  of  a  mile,  to  the  hoube  of 
her  brotlier-in-law  with  whom  she  then  resided.  Yery  soon  after 
she  loft  tlic  railroad,  she  lieard  the  prisoner,  a  colored  man,  "hol- 
ler" to  her  to  "stop,"  and  saw  him  running  after  her,  distant 
about  seventy  yards.  The  prosecutrix  then  began  to  run  "as 
hard  as  she  fould,"  and  was  T)ursued  rajiidly  by  the  prisoner,  who 
"  hoUored  "  three  times  to  her  to  "  stop."  The  prisoner  was  ap- 
proaching lier,  until  the  road  emerged  from  the  woods  into  a 
lane.  When  the  piisoner  reached  the  "  mouth  of  the  lane,"  and 
saw  the  dwelling  house  of  the  brother-in-law  of  the  prosecutrix 
near  by,  he  lied  in  the  direction  of  the  railroad  and  into  the 
woods.  1 !(.'  was  ]iursued  aud  was  taken  shortly  afterwards  at  a 
section  lutuse.  The  prosecutrix  was  put  in  great  fear  by  the 
cl  a?e. 

The  roc(jrd  sent  to  this  court  upon  appeal  says:  "There  was 
otlu-r  evidc"":"  liearingon  the  intent  with  which  he  pursued  the 
pr-^secutiix,  which  it  is  not  iKJcessary  to  set  forth  in  detail." 

The  ofurt  charged  tlie  jury:  "That  this  was  a  vory  serious 
charge  against  tlie  prisoner,  and  it  was  the  duty  of  the  state  to 
prove  all  the  esscMtial  facts  constituting  it,  beyond  a  reasonable 
doubt,  atul  that  if  they  had  reasonable  dou1>t,  they  must  acquit." 

As  to  the  assault,  the  court  charged:  "Tliat  if  the  prisoner 
pursued  tlie  prosecutrix  against  her  will,  with  tlie  intent  vio- 
lently to  take  hold  of  her  person,  and  caused  her  to  tlee,  and  then 
continued  to  pursue  her,  this  would  be  an  assault,  and  that  if 
they  foujid  that  the  prisoner  committed  such  an  assault  with  tho 


AMERICAN  CRIMINAL  REPORTS. 


m 


ii    'l! 


!i   }!► 


h  ? 


intent  carnally  to  know  the  person  of  the  prosecutrix,  violently 
and  against  her  will,  he  would  be  guilty,  and  they  must  so  find; 
otherwise  they  would  acquit." 

To  this  charge  the  prisoner  excepted. 

The  jury  rendered  a  verdict  of  guilty,  whercupn!'  •'  ris()ner 
moved  the  court  for  a  new  trial.  Motion  overruka.  ISenteiioe 
pronounced  and  the  prisoner  appealed. 

S/if'j>p  ct'  Bailey,  for  the  prisoner, 

Ilui'ijroi'c,  Attorney  General,  for  the  state. 

Pkausox,  C.  J.  That  the  prisoner,  upon  the  facts  set  out  in  the 
statement  of  the  case,  r^onjinitted  an  assault,  is  not  an  opp'i  |Ui:  ■- 
tion.  State  v.  Davis,  1  Ired.,  125;  State  v.  Raioles,  C-  N.  ', '., 
334;  State  v.  Vamioy,  id.,  532. 

This  it  would  seem  was  the  only  point  relied  on  by  the  coun- 
sel of  the  prisoner  in  the  court  below.  We  are  led  to  tlie  iiifcr- 
en3e  that  the  points  as  to  there  being  no  evidence  of  tlic  intent 
to  commit  a  rai)e  were  not  taken  in  the  court  below,  by  tlic  fact 
that  in  statiiiix  the  case  his  honor  assumes  that  the  intent  charired 
was  fully  proved  and  given  upon  the  trial,  and  contents  himself 
with  setting  out  "there  was  other  testimony  bearing  on  the  in- 
tent Avith  which  he  ])ursued  the  ])rosecutrix,  which  it  is  ii.it 
necessary  to  set  forth  in  detail."  Clearly  had  the  point  Ihhmi 
made,  that  there  was  no  emdenre  lit  to  be  left  to  the  jury  as  to 
the  intent  charged  in  the  indictment,  liis  honor  would  have 
seen  that  it  was  necoss  irv  to  set  forth  in  detail  the  other  testi- 
mony, "bearing  on  the  intent  with  which  he  pursued  the  pi<i>e- 
cutrix."  llowtjver  this  may  be,  giving  the  ]»risoiier  ilie  beii-dit, 
of  Jie  rule,  "  what  does  not  appear  d(tes  not  exist,"  and  relieving 
him  from  the  rule,  "the  appellant  must  show  error  and  intend- 
ments are  to  be  taken  against  him,"  we  will  consider  the  case  as 
presenting  the  (juestion:  Do  the  facts  and  circumstances  set  out 
amount  to  any  evidence  fit  to  be  left  to  the  jury  as  to  the  intent 
charged?  (h*  was  the  matter  of  intent  left  so  much  in  the  diirk 
as  to  make  it  the  <lnty  of  the  judgi;  to  have  instructed  the  jury 
to  have  acijuitted  the  prisoner  of  the  criminal  intent  cliargiMl  i 

A  majority  of  the  court  are  of  the  opinion  that  there  was  evi- 
dence t(»  be  left  to  the  jury  as  to  the  intent  charged.  lAtr  my 
own  ])art  I  think  the  evidence  j)lenarv,  and  had  I  been  on  the 
jury,  would  not  have  hesitated  one  moment. 


STATE  V.  NEELY. 


G30 


X,  violently 
ust  so  find : 


''      'I'lsoner 
Sentence 


it  out  in  the 

s,6.  X.  ('., 

y  the  coun- 

0  the  infcr- 

1  the  intent 
by  the  fact 
ent  chiii'<ije(l 
nts  himself 
;  on  the  in- 
It   it  is  nut 

jioint  Ikhmi 
!  jiirv  us  to 
vonhl  liave 
otlicr  ti'sti- 
1  tlu'  i>i-(i>e- 
i]\c  Iten-etlt 
1(1  relit'vin^j^ 
and  intentl- 
the  case  as 
nces  Ht't  out 
I  the  intent 
in  the  dark 
;d  the  jury 
charn'cd  i 
M"e  was  evi- 
1.  For  my 
;)ecn  on  the 


I  see  a  chicken  cock  drop  his  wings  and  take  after  a  hen;  my 
experience  and  observation  assure  me  that  his  purpose  is  sexual 
intercourse;   no  other  evidence  is  needed. 

AVhether  the  cock  supposes  that  the  hen  is  running  by  female 
instinct  to  increase  the  estimate  of  her  favor  and  excite  passion, 
or  whether  the  cock  intends  to  carry  his  purpose  by  force  and 
against  her  will,  is  a  question  about  which  there  may  be  some 
doubt;  as  for  instance  if  she  is  a  setting  hen  and  "  makes  fight," 
not  merely  amorous  resistance. 

There  may  be  evidence  from  experience  and  observation  of  the 
nature  of  the  animals,  and  of  male  and  female  instincts,  fit  to  be 
left  to  the  jury  upon  all  of  the  circumstances  and  surroundings 
of  the  case,  Was  the  pursuit  made  with  the  expectation  that  he 
would  be  gratified  voluatarily,  or  was  it  made  with  the  intent  to 
have  his  w'il  against  her  will  and  by  force?  Upon  this  c:^;e  of 
the  cock  and  the  hen,  can  any  one  seriously  insist  tliat  a  jury  has 
no  right  to  call  to  their  assistance  tlieir  own  experience  and  ob- 
servation of  the  nature  of  animals  and  of  male  and  female  vi' 
stinds. 

Again:  I  sec  a  dog  in  hot  pursuit  of  a  rabbit;  my  experience 
and  observation  assure  me  that  the  intent  of  the  dog  is  to  kill  the 
rabbit;  no  doubt  about  it,  and  yet  according  to  the  argument  of 
the  i)ri.soner's  counsel,  there  is  no  evidence  of  the  intent. 

In  our  case,  when  the  woman  leaves  the  railroad  and  starts 
for  her  home,  and  is  unaccompanied,  to  pass  through  woodland 
for  one-fourth  of  a  mile,  a  negro  man  calls  her  to  sto]);  he  is  at 
the  distance  of  seventy-five  yards;  she  with  female  instinct,  from 
the  tone  of  his  voice,  looks  and  sees  his  purpose,  and  runs  as  fast 
as  she  can  through  the  woodland  ar/d  makes  the  head  of  the  lane 
in  sight  of  the  house  before  he  is  able  to  catch  her;  he  pursues 
to  the  end  of  the  lane,  and  then  flees  and  attempts  to  escape  in 
the  woods. 

It  is  said  in  the  ingenious  argument  of  the  counsel  of  the 
prisoner,  his  intent  may  have  been  to  kill  the  woman,  or  to  rob 
lier  of  her  shawl  or  of  her  money,  and  if  the  jury  cannot  decide 
for  which  of  these  intents  he  pursued  her,  they  ought  to  find  a 
verdict  for  the  defendant.  The  fallacy  of  this  argument  is,  I 
conceive,  in  this:  it  excludes  all  the  knowledge  which  ve  ac- 
<|uire  from  experience  and  observation  as  to  the  nature  of  man. 
This  is  the  corner  stone  on  which  the  institution  of  trial  by  jury 


640 


AMERICAN  CRIMINAL  REPORTS. 


r    I 


'  V  . 


Ill 


?l' 


rests.  To  say  tliat  a  jury  are  not  at  liberty  to  refer  to  their  ex- 
perieuce  and  observation,  when  a  negro  man,  under  the  circum- 
stances of  this  case,  pursues  a  wliite  woman,  starting  at,  say  sev- 
enty-five yards  and  gaining  on  her,  and  being  near  when  she  gets 
in  sight  of  the  house,  when  he  stops  and  flees  into  the  woods,  is, 
as  it  seems  to  me,  to  take  from  a  trial  by  jury  all  of  its  recom- 
mendations. 

Our  case  particularly  called  for  the  observation  and  experience 
of  the  jurors  as  practical  men.  The  prisoner  had  some  intent 
when  ho  pursued  the  woman.  There  is  no  evidence  tending  to 
show  that  his  intent  was  to  kill  her  or  to  rob  her,  so  that  the  in- 
tent must  have  been  to  have  sexual  intercourse,  and  the  jury 
considering  that  he  was  a  negro,  and  considering  the  hasty  flight 
of  the  woman,  and  the  prisoner  stopping  and  running  into  the 
woods  when  he  got  in  sight  of  the  house,  and  the  instinct  of  na- 
ture as  between  male  and  female,  and  the  repugnance  of  a  white 
woman  to  the  embraces  of  a  negro,  had  some  evidence  to  liud 
that  the  intent  was  to  commit  a  rape. 

KoDMAN,  J.  {dissent I mj).  I  cannot  concur  in  the  oi)inion  of 
the  majority  of  the  court,  and  will  state  the  reasons  for  my  dis- 
sent with  as  much  brevity  as  is  consistent  with  clearness. 

Upon  the  authority  of  State  v.  Iiuwles,  I  admit  there  was  evi- 
dence on  which  the  jury  might  convict  a  prisoner  of  a  simj)le  as- 
sault. 

But  in  my  opinion  the  record  sets  forth  no  evidence  lit  to  go 
to  the  jury,  or  upon  which  they  could  reasonably  find  the  ju'is- 
oner  guilty  with  the  intent  charged.  The  intent  was  an  Cv^sen- 
tial  ingredient  of  the  ofi'ense  charged,  and  there  was  no  evidence 
of  it. 

In  the  opinion  of  the  court,  as  delivered  by  the  chief  justice, 
tlie  argumoTit  is,  that  becaxise  from  certain  actions  of  certiiin 
brute  animals,  a  certain  intent  would  be  inferred,  :>.  like  intent 
must  be  inferred  against  the  jjrisoner  from  liivo  acts. 

It  seems  to  me  that  the  illustrations  are  not  in  point,  even  if 
that  method  of  reasoning  be  allowable  at  all.  Ths'  chicken  cock 
in  the  case  supposed  has  no  intent  of  violence.  He  expects  ac- 
quiescence, and  knows  he  could  not  succeed  without  it,  and  be- 
sides, he  is  dealing  with  his  lawful  wife. 

But  ihe  method  of  reasoning  is  misleading  sMid  objectionable 


n^ 


STATE  V.  NEELY. 


Cll 


er  to  their  ex- 
r  the  circum- 
\g  at,  say  sev- 
when  she  gets 
the  woods,  is, 
of  its  recoiu- 

ud  experience 
d  some  intent 
ice  tending;  to 
60  that  the  in- 
and  the  jury 
he  hasty  fliglit 
uiing  into  the 
instinct  of  na- 
nce of  a  wliite 
idence  to  lind 


the  opinion  of 
ns  for  my  dis- 
harness, 
there  was  cvi- 
of  a  simple  as- 

dcnce  lit  to  co 
find  the  pris- 
was  an  essen- 

as  no  evidence 

!  chief  justice, 
)ns  of  certain 
,  n.  like  intent 
Is. 

point,  even  if 
'.'  cliicken  cock 
He  expects  ac- 
jut  it,  and  be- 

I  ohjectionuble 


on  principle.  It  assumes  that  the  ])risoner  is  a  brute,  or  so  like 
a  brute  tliat  it  is  safe  to  reason  from  tlie  one  to  the  other;  that 
he  is  governed  by  brutish,  and  in  his  case,  \icious  passions,  un- 
restrained by  reason  or  a  moral  sense.  This  assumption  is  un- 
reasonable and  unjust.  The  prisoner  is  a  man,  and  until  con- 
viction at  least,  he  must  be  presumed  to  have  the  passions  of  a 
man,  and  also  the  reason  and  •iu)ral  sense  of  a  man,  to  act  as  a 
restraint  in  their  unlawful  gratiiication.  Otherwise  he  would 
be  710)1  eomj>()s  mentis,  and  not  amennl>le  to  law.  He  is  entitled 
to  be  tried  as  a  man,  and  to  have  his  acts  and  intents  encpiired 
into  and  decided  upon,  by  the  princi])les  whicjh  govern  hunum 
conduct,  and  not  brutish  conduct.  Assume  as  the  opinion 
of  the  court  does,  that  the  incpiiry  as  to  his  intent  is  to  be 
conducted  upon  an  analogy  from  the  intents  of  brutes,  you  treat 
him  worse  than  a  l)rute,  because  what  would  not  be  vicious  or 
criminal  in  a  brute  is  vicious  and  criminal  in  him,  beiniraman. 
When  you  assume  him  to  be  a  brute,  you  assume  him  to 
be  one  of  vicious  propensities.  If  that  be  true,  what  need  of 
court  and  jury^  The  prisoner  is  not  only  feno  nutuiue 
but  ('(q»d  liqnmDii  whom  any  one  may  destroy  without  legal 
ceremony. 

The  evidence  of  the  prisoner's  intent  is  circumstantial;  the 
circumstances  being  the  jjursuit  and  its  abandonment  when  he 
got  in  sight  of  White's  house.  It  is  the  admitted  rule  in  such 
cases  that  if  there  be  any  reasonable  hypothesis  upon  which  the 
circumstances  are  consistent  with  the  prisoner's  innocence,  the 
judge  should  diirct  an  ac([uittal,  for  in  such  cases  there  is  no 
]i()sitive  ])roiif  of  guilt.  The  particular  criminal  intent  charged 
mu^t  l)e  )>roven.  It  will  not  do  to  prove  that  the  prisoner  had 
tlia*  intent  or  some  other,  althoui'h  the  other  nuiv  have  been 
criminal;  and  especially  if  the  other,  altliough  immoral,  M'as  not 
criminal.  In  i:,.r  r.  Loij,!,  7  ( \  i^:  1'.,  IJls  ^;!2  K.  C.  L.  U.  5-Jo),  it  was 
held  by  Paitkusox,  ,J.,  that  in  order  to  convict  of  assault  with 
intent  t(»  commit  a  rape,  the  jury  must  be  satistied,  not  oidy  that 
the  ])risoner  intended  to  gratify  his  passions  on  the  ])ro6ecutrix, 
but  that  he  intended  t(»  do  so  at  all  events  and  notwithstanding 
any  resistance  on  her  part,  lloscoe  ('r.  Ev..  Sll.  It  is  not 
proof  of  guilt,  merely,  that  the  facts  are  consistent  with  guilt; 
they  mustl>e  inconsistent  with  innocence.  It  is  neither  charity, 
nor  common  sense,  nor  law,  to  infer  the  worst  intent  which  the 
Vol.  I.~4l 


042 


AMERICAN  CRIMINAL  RKPORTS. 


~M 


I,  „j-. 


facts  will  admit  of.  The  reverse  is  the  rule  of  jn.stice  and  law. 
If  the  facts  will  reasonably  adnul  the  inference  of  an  intent, 
which  thoui^h  immoral  is  not  criminal,  we  are  bound  to  infer 
that  intent. 

In  the  ])re»cnt  case,  may  not  the  intent  of  the  prisoner  Imve 
been  merely  to  solicit  the  woman,  and  to  desist,  if  she  resibtod, 
his  solicitations'^  Or  may  it  not  be  that  he  had  not  anticiputod 
resistance,  and  would  desist  in  case  it  occurred?  Either  liv- 
pothcsis  will  do,  iuid  either  is  consistent  with  every  fact  in  ev- 
idence; with  the  j)ursuit,  and  with  its  abandonment,  when  tho 
prisoner  at;j)reh'j!>ded  discovery.  There  is  absolutely  no  evidence 
that  the  jirisoni'r  had  formed  the  intent  char<^ed,  viz.:  to  know 
the  woman  in  s]);te  of  resistance  and  at  all  hazards. 

"VV^e  are  told  in  the  Sacred  Jlcxdi  that  "  whoso  looketh  on  a 
a  woman  to  Inst  after  her  hath  committed  adultery  in  his  heart;" 
aihilUrij,  not  rcj)''.  In  the  minds  of  men  there  is  a  wide  s|m('e 
between  the  immoral  intent  to  seduce  a  woman,  and  the  crimi- 
nal intent  to  ravish  her.  It  is  at  this  point  that  the  inference 
drawn  from  the  assumed  indentity  of  civili/.ed  men,  with  brutes, 
is  most  misU'adin<^  and  unfair.  A  man  may  perhaps  be  easily 
led  by  his  ])as>i(iiis  to  form  the  immoral  intent  t<»  solicit  a 
wonuxn,  and  to  attemi)t  to  execute  it.  Hut,  as  a  reasoning  beiui,', 
he  will  ]>ause  before  he  forms  the  intent,  and  attem)>ts  to  exe- 
cute it,  to  commit  so  hideous  and  penal  a  crime  as  rape;  one  so 
certain  of  detection  and  ])unishment.  The  moral  seiif-e  which 
every  man  has,  in  a  greater  or  less  degree,  and  the  terrors  of  the 
law,  ome  in  to  hold  him  back  from  the  determination  to  eoni- 
mit  the  crime,  and  to  make  him  take  a  period  for  deliberatiun, 
which,  in  tin;  absence  of  evidence  to  the  co?itrary,  it  must  1»l' 
]>resumed,  lit;  availe<l  himself  of.  Where'>s,  in  the  l>rute,  there 
are  no  such  restraints,  as  the  gratitication  of  his  |ias-.ions  is 
neither  a  sin  Jior  crime.  Surely  the  same-  ruK's  of  evidence;  can- 
not »,p])ly  to  beings  so  ditVerent  and  acting  under  tlitl'erent  nmr- 
al  and  legal  resjHinsibilities. 

The  dillerence  in  color  between  the  prosecutrix  and  the  ])ris- 
oner,  although  it  wouhl  aggravate  the  guilt  upon  tlie  prisoner 
upon  conviction,  cannot  justly  atlect  the  rule^  of  evidence,  liy 
which  his  guilt  is  iiKpiired  into.  These  musl  be  the  same  fur 
all  classes  and  c<)nditions  of  men. 

It  seems  to  me  that  the  decision  of  the  court  is  a  departure 


GREER  V.  STATE. 


643 


irtticc  and  liiw. 

of  an   iiitont, 

uund  to   infer 

prisoner  liavo 
C  s'iie  resistt'd, 
lot  anticipated 
?  Either  liy- 
ry  fact  in  ev- 
ent, wlien  tlio 
i\y  no  evidence 
\'vA.:  to  know 

8. 

looketli  on  a 
■  inliislieart;" 
is  a  wide  K]»acc 
uid  the  criini- 

tlie  iid'c'iTiico 
II,  with  hriitos, 
haps  1)0  easily 
it  to  solicit  a 
sasonini^  ''*^'iii,i,', 
teni))ts  to  exe- 
s  rape;  one  so 
d  seui-e  which 
!  te  -rors  of  tlu; 
lation  to  coiii- 
r  delihenitiuM, 
ry,  it  must  he 
e  hnite,  there 
lis   passions  is 

t'\  ideiicc  cjiii. 
ditl'ereiit  innr- 

and  the  pris- 
I  the  pri-oner 
r  evidence,  hy 
0  the  same  fur 

s   a  departure 


from  what  I  liad  supposed  to  he  a  firndy  estahlishod  rule  of  evi- 
dence for  the  ]>roteetiou  of  innocence. 

]?YMUM,  J.,  concurs  in  tlie  dissenting  opinion  of  Justice  Rod- 
man. 

Pek  Cukiam:  There  is  no  error. 


GuKKii  vs.  Statk. 
(oO  1)1(1.,  207.) 


Assault  wiTn  Intext  to  Ravish:    VlvmUng  —  Bape  —  StuUite  construed  — 

Eiiflence. 

Oil  iin  indictment  for  an  ansniilt  with  iiitont  to  ravish,  which  did  not  stiito  that 
tho  iut  was  dono  "  unlawfully  "  or  "  IV'loniously,''  it  wiw  held,  that  the  in- 
dictment was  Ijad  as  to  the  intent  to  ravish,  but  pood  us  an  indictment  for 
nn  iissaidt  and  liatteiy.  ainl  tliat  a  motion  to  quash  was,  therefore,  properly 
ovcn.detl. 

By  titntuto.  nxiw  is  divided  i)it<i  raiie  on  females  over  the  ago  of  twiilvc  years, 
and  inider  the  a^e  of  twelve,  and  eviilence  of  a  rape  of  the  one  class  will 
not  sustain  a  conviction  for  a  nijie  of  the  other  class. 

"Wliere  (he  indietnieiit  does  not  stat<'  the  af,'n  of  the  female,  the  court  \vill  in- 
tend that  slie  was  over  twelve  y^ais  of  aije,  and  evidence  of  a  rape  on  a 
female  under  the  ay;e  of  twelve  years  will  not  sustain  the  indietinent. 

Hie  same  nilc  apjtlies  to  indictmr-nts  for  assault  with  intent  to  commit  rape. 

Wlii'ie  an  inilietment  for  a.ii  assault  with  intent  t.)  commit  nipe  <Ioes  not  state 
the  a-je  of  the  prosecutrix,  evidence  of  an  assault  with  intent  tfl  commit  rape 
on  lier,  she  Iteiii),'  a  female  under  the  age  of  twelve  years,  will  not  sustain  a 
conviiiion. 

WouDKN,  J.  An  indietinent  was  found  against  the  appelhuit, 
chiirijing  tiiat  ln",  "  on  the  l:»th  day  of  daniiary,  A.  1).  1875,  ut 
the  eouiit\  of  Marion,  and  state  of  Iiidi.iiiu,  did  tlien  and  there, 
in  a  rude,  insolent  .•  d  ani^ry  manner,  unlawfully  touch  and  as- 
sault one  Maiv  K.  (  laves,  a  woman,  with  tlu^  intent  then  and 
tlien'tlm  Slid  Mary  K.  Clave-,  foivihly  and  against  tlie  willof  the 
Slid  Mary  K.  ( Mayes,  to  ravi.-h  and  carnally  know,  contrary,"  etc. 

Motion  to  <piash  t>>errule<l,  and  exce))tion.  Trial  liyjnrv,con- 
vietiou.  and  jiidirnient,  th.-it  dcfnidant  pay  a  tine  of  one  innidred 
dnliar>.  and  lie  iin])risone<I  for  tlie  term  of  two  years  in  the  state 
priMiii. 

The  ov 'rruling  of  tlie  motion  to  (puish  is  assigned  for  error. 
It  will  be  seen  that,  in  dvx.Tibiu''  the  crime  which  the  deftiidanl 


644 


AMERICAN  CRIMINAL  RKPORTS. 


is  charged  witli  Iiiiviiifi;  iiitoiKltnl  to  coiiunit,  viz.,  the  rfvpc.  the 
picador  Iihh  not  iii-cd  the  word  "  nnlawfully,"  whicli  enters  intu 
the  ritutntory  de.-cription  of  tliat  oflensc.  No  Ciiuivalent  wnnl 
is  used.  Mad  tlic  word  •' feloniously  "  Iteen  used  in  <lescriliiiin 
tiie  intended  rape,  that  would,  do\d)tless,  have  heen  Huftlcieut,  !i> 
un  act  could  not  l>e  felonious  without  heiui^  unlawful.  ]V(!ii- 
zorjiffhi.  V.  The  Stnte,  7  IMackf.,  ls«?;  Sl<><in  v.  Th<  Sf<ff,.-'t-2 
Ind.,  i)70.  It  would  seem,  therefore,  that  the  indii'tinent  is  not 
good  for  anything  more  than  a  sinijde  assault  and  hatterv.  lint 
the  motion  to  (piash  was  correctly  overrnle<l,  hecause  the  iudii-t- 
ment  contained  a  valid  charge  of  assault  aixl  hattery,  and  the 
intent  charged,  though  nugatory,  does  not  vitiate  that  which  is 
correctly  charged.  The  motion  to  <piash  ajiitears  to  have  Ixcii 
addressed  to  the  whole  indictment,  and  not  to  that  i)art  incrily 
charging  the  intent. 

There  was  no  motion  in  arrest  of  judgment,  nor  is  it  assigm  /I 
for  error  that  the  indictment  is  not  sutlicient  to  sustain  the  judg- 
ment. There  was  no  e.\ce])tion  tid<eii  to  the  judgment  as  icn- 
dered.  The  ohjection  to  the  indictment  is  in  no  way  so  pn'sciitcd 
to  this  court  as  to  make  it  available  to  the  ajtpellant. 

AVe  ])roceed  to  the  consi<leration  of  (»ther  (questions  arising  in 
the  cause. 

Jt  ai)|)eared  on  the  trial  of  the  cause,  that  the  person  cliMrgcd 
to  have  been  assaulted  hy  the  defendant  was  n  female  child,  hc- 
twecJi  eleven  and  twelve  years  of  ag(^  at  the  time  of  the  assault. 
The  court  gave,  as  a])])li('al)le  to  the  case,  the  following  cliaii;!'. 
to  which  the  defeiulant  excepted,  viz.: 

"You  will  o])serve  that  if  a  person  has  carnal  kuowleilge  of  a 
woman  child,  under  the  age  of  twelve  years.  Ik-  is  guilty  of  rape. 
whether  the  carnal  knowledge  was  with  or  without  the  ('oii>eiit 
of  the  child;  for  the  law  ]iresumes  that  a  child  under  thi;  a^e  of 
twelve  years  is  not  ca]>ahle  of  consenting  to  intercourse,  so  that  a 
man  having  connection  with  her  is  guilty  of  raj)e,  whether  it  wan 
with  her  consent  or  n(»t." 

The  jury  must  lane  understood  from  this  charge  tint  if  the 
defendant  ]>erpetrated  the  assault  and  hatt(M'y  upon  the  child.  >lie 
being  umlcr  the  age  of  twelve  years,  with  intent  to  have  carnal 
connection  with  her,  he  might  be  convicted  of  the  (/tleiise  chargeil. 
without  regard  to  the  (piestioti  whether  he  intended  to  luivc  siicli 
connection  with  or  without  her  consent. 


GRKKIl  r.  STATE. 


045 


:lic  r.ipf.  tlic 
I  ontors  liitn 
ivalfiit  \\t<Yi\ 
n  (lescril)iiiw' 

SUfHcitMlt,  J|> 

•fill.    w.;,,. 

'tiiient  is  nut 
liittery.  I'.iit 
i<o  tlio  iiidit't- 

\\iV\,  JIIkI    tll(' 

hut  wliicli  is 

t<»  liiivi;  licca 

j)art  inertly 

i.s  it  nssiii'iinl 
iiiii  tliu  jinliT- 
ncnt  MS  nii- 
so  |»n's('iit(il 
t. 
ius  arising  in 

rsoii  cliariri'il 

ilk'  ('hi id,  1m,'- 

thc  assiuilt. 

kvini,'  cliariii'. 

wlt'ilijc  I'f  a 
uiltv  of  ra]ii'. 

the  ciinx'iit 
IT  tilt;  aire  nf 
irsc.  so  that,  a 
lu'tlicr  it  \\\iy> 

e  tint  if  the 
thi'  child.  >lie 

•  liavi'  carnal 
L'lisc  charp'd. 

to  have  such 


The  charge  may  have  heen  correct  as  an  abstract  proposition, 
hut  it  was  clearly  wroiif,'  as  applied  to  the  char^^c  contained  in 
the  indictment.  The  indictment  charj^es  that  Mary  E.  Claycs, 
the  person  cliai-f^ed  to  have  heen  assaulted,  was  a  woman,  and 
that  tlie  defeiuhint  intended  carnally  to  know  her  forcihly  and 
a;,'ainst  her  \\  ill.  The  statute  detininjr  and  prt)vidinijj  punish- 
ment for  rape,  ]>rovides  that  ''every  person  wlio  shall  unlawfully 
liave  carnal  knowledfje  of  a  woman  a<:;ainst  her  will,  or  of  a 
woman  child  under  twelve  years  of  aji;e,  shall  be  deenaed  fj;uilty  of 
rape,"  etc.  2  (»,  «fc  H.,  440,  sec.  14.  This  statute,  it  will  be  seen, 
enumerates  tw«>  classes  of  facts,  each  of  which  constitues  a  rape. 
First,  it  is  a  ra]>e  to  unlawfully  have  carnal  lvnowledij;e  of  a 
woman  ajjjaiiist  her  will.  AVe  take  it  that  all  females  of  the 
human  species  over  twelve  years  of  age  are  to  be  deemed  women 
within  the  meaning  of  the  ilrst  clause  of  the  statute.  Second,  it 
is  a  rape  to  unlawfully  have  carnal  knowledge  of  a  woman  child 
under  twelve  years  of  age.  In  the  second  case,  it  is  immaterial 
whether  the  child  consent  or  not,  for  if  she  consent,  the  act  con- 
?titutes  a  rape  nevertheless.  Ibit  the  prosecutor  cannot  charge 
a  rajie  of  the  one  class  and  sustain  the  charge  by  proof  of  a  rapo 
oi"  the  other  class.  Nor  can  he  charge  an  assault  and  battery 
with  intent  to  commit  a  rajie  of  the  one  class,  and  sustain  the 
cliarge  by  evidence  of  an  intent  to  commit  a  rape  of  the  other 
class.    The  variance  between  the  allegations  and  the  proof  is  fatal. 

Tliis  is  establish .!(!  by  the  following,  among  other  authorities 
that  might  be  cited:  1  Wliart.  Crim.  Law,  sec.  fill;  1  Bish. 
Crim.  Proc.,  sees.  485, 4Sfi;  Turhij  v.  The  State,  3  Humph.,  323; 
][„ohur  V.  The  State,  4  Ohio,  34S;  The  State  v.  Nolle,  15  Isle, 
47(5;  State  v.  Jtiehmm,  30  id.,  20;   Dlehv.  State,  30  ^Miss.,  031. 

There  need  be  no  trouble  in  cases  of  this  kind,  as,  if  there  is 
any  doubt  about  the  age  of  the  ))erson  assaulted  or  ravished,  the 
oiVeiise  can  be  charged  both  ways  in  diilerent  counts.    A  motic 
for  a  new  trial  was  \i\\  »i)erly  niade,  and  should  have  been  sustained. 

There  are  some  other  ([uestions  made  in  the  cause,  but  as  we 
sup]»ose  they  will  not  be  likely  to  again  arise  upon  the  trial  of 
the  defendant  upon  this  indictment,  we  pass  them  over. 

The  judgment  below  is  reversed,  and  the  cause  remanded  for 
a  n(nv  trial. 

The  clerk  will  give  the  proper  notice  for  the  return  of  the 
prisoner. 


'}i: 


Si' 


il 


646  *MEIUCAN  CUIMIXAL  UEl'UUTS. 

Static  vs.  Nilku. 
(47  Vt.,  82.) 

Rai'k:    thUUncc  —  Coiiqihiint  hi/ prosrciitrix. 

On  the  trial  of  II  man  for  mpo  on  his  Ht^'p-daiiylitcr,  a  ^irl  of  twelve  yciUH  of 
aye,  and  winall  for  her  a^e,  it  was  hilil,  that  a  eliarp-  that  "  if  the(,'U'l  in  tlio 
first  insfance  consented  to  tiie  sexual  interioiu-se  with  the  respondent,  but  if 
after  the  coninu'no(;ment  of  the  sexuiJ  intercoiu'se,  win  withdrew  her  consent 
iuid  the  rosi)ondi!nt  foreilily  continued  it  with  laiowledp'  of  her  dissent,  this 
would  be  rape,"  \va.s  proper,  and  not  eiror  under  the  eircunistunces  of  tiio 
cose. 

A  complaint  by  the  prosecutrix,  made  two  months  after  the  eonnnissiou  of  a  rape, 
is  admissil'le  apiinst  tin.'  resjiMiident  on  a  trial  for  rape. 

On  a  trial  for  rape  the  prosecuti(m  nu\y  give  in  evidence  the  fact  that  the  jiro^. 
ecutrix  madt;  a  complaint  charging  that  the  oflense  wiis  committed,  liut  it  is 
eiTor  to  admit  the  particulars  of  the  charge,  or  Uie  name  of  the  jiei'son 
charged  by  her. 

m 

Indictmkxt  for  rape  on  Lillian  Gray,  a  female  above  tin;  ai,'o 

of  consent,  on  the  20th  day  of  January,  1874.     Plea,  not  ^'uilty. 

Trial  by  jury  and  verdict  of  guilty.     June  term,  187-4.     Itoss,  J., 

presiding. 

The  evidence  on  the  part  of  the  state  teiuled  to  show,  that  the 
said  Lillian,  on  or  about  the  day  in  question,  left  the  residence  of 
the  re>])ondent  in  liurke,  in  company  with  him,aiul  went  with  liini 
a  distance  of  about  two  miles  to  AV^atson's  sugar  ho\ise,  and  that 
Boon  after  leaving  the  respondent's  house,  he  informed  her  of  his 
intention  to  go  to  said  sugar  house,  and  there  luive  sexual  inter- 
course with  her;  that  no  violence  or  threats  were  there  emitloyc'<l, 
but  the  said  Lillian  followed  the  respondent  to  said  jdace  without 
resistance  or  complaint;  that  there  she  made  no  outcry  and  no  re- 
sistance, other  than  is  liereinafter  stated.  Tlie  only  testimony  in 
regard  to  what  took  ])lacc  in  the  sugar  house  was  that  of  the  s-aid 
Lillian,  who  testified:  ''We  went  into  the  sugar  house;  stayed 
thereabout  fifteen  minutes;  no  path  to  sugar  house;  he  went  for- 
ward; went  into  sugar  house;  lie  took  oft'  my  untlerclothes,  and 
put  mo  on  boards  or  a  slal);  he  got  on  top  of  nie;  I  was  wet;  I 
tried  to  get  away  from  him;  he  held  me  there;  stayed  about  liftecii 
minutes;  went  then  to  West  Ihirke,  at  German's;  he  bought  me  a 
dress;  then  went  home."  On  the  cross-examination,  she  testified: 
*'  He  held  me  by  getting  on  top  of  nie.   Knew  soon  after  he  started 


twclvi'   JTitl'H  of 

if  tlii'KuI  ill  the 
siioiidt'iit,  liut  if 
Irew  licr  (.'oiiscnt 
lii'i'  tlisMi'iit,  this 
iinstiiiifi's  uf  the 

lUHsiou  of  a  rape, 

I't  thiit  tlio  jiros- 
iiuittt'il.liut  it  in 
L'  of  thi;  jicrsoii 

in 

hove  tlu!  iijfo 
I,  iH»t  j^uilty. 
i.      lloss,  J.J 

liow,  tliiit  the 
2  rcsideiico  ni 
,'eiit  witli  liim 
»u.st',  and  timt 
t'd  her  of  liis 

sexual  inter- 
jre  cni|)l(t}0(l, 
])lac'e  witlioiit 
cry  and  no  ro- 

testinionj  in 
lat  of  tlie  ^•llid 
louse;  stayed 
;  he  went  for- 
jrclothes,  and 

I  was  wet;  I 
lahout  lifteen 
cboug'lit  niea 
,  alie  testitioil: 
fter  he  started 


Sl'ATE  f.  NILES. 


C41 


from  home,  that  we  were  going  to  the  sugar  house  for  this  pur- 
])ose.     Didn't    hoHoa  or  scream.     I  wanted  to  get  up,  hut  \w 
woukln't  let  me.     I  helieve  that  was  all  I  tried  to  get  away  from 
liinu"     Slie  testified  that  the  respondent,  after  the  act  complained 
of,  nuvde  threats  to  her  in  case  she  disclosed  it;  but  no  violence 
or  threats  were  made  other  than  as  above  set  forth.     Lillian  was 
the  daughter  of  the  respondent's  wife,  and  then  only  twelve  years 
old,  and  of  small  stature.     About  the  first  of  the  following  April, 
the  respondent's  wife  left  him  to  go  and  live  with  ^h'6.  Ladd,  at 
l.artoii  Landing,  taking  Lillian  with  her.     Up  to  this  time,  Lil- 
lian had  never  made  any  complaint  of  the  respondent's  usage  of 
her,  and  never  disclosed  it  to  any  one.     j\[rs.  Ladd  was  then  and  ' 
still  is  unfriendly  to  the  respondent.     She  testified  that  two 
weeks  after  Lillian  arrived  at  her  house,  in  response  to  her  in- 
(juiries,  liillian  complained  of  the  respondent's  usage  of  her, 
above  testified  to,  which  had  occurred  some  two  months  previ- 
ously, and  said  she  had  not  told  of  it  before  because  she  did  not 
dare  to,  "'  for  he  said  he  would  kill  me  and  mother  too,  if  I  told." 
The  respondent  excepted  to  the  admission  of  this  testimony. 
It  had  appeared  uncontradicted  that  until  Lillian  went  to  Mrs. 
Ladd's  to  live,  she  had  lived  with  her  mother  in  a  house  with  the 
respondent.     The  state,  in  ^(n'roboration  of  Lillian's  story,  gave 
medical  testimony  tending  to  show  that  some  ])erson  had  had 
sexual  intercourse  with  her,  and  probably  several  times.     The 
court,  among  other  things  not  excepted  to,  charged  the  jury  that 
if  Lillian,  in  the  first  instance,  consented  to  the  sexual  intercourse 
with  the  respondent  at  the  time  and  place  alleged,  and  if  the  re- 
spondent commenced  and  entered   upon  the  sexual  intercourse 
with  her  consent,  Init  she  then  withdrew  her  consent,  and  the 
respondent  forcibly  continued  the  intercourse  after  he  had  knowl- 
edge of  her  dissent,  it  would  be  rape.     The  charge  was  in  all 
other  respects  satisfactory  to  the  respondent,  and  such  as  the  case 
called  for.     To  so  much  of  the  charge  as  is  given,  the  respondent 
excepted. 

RoYCK,  .T.  The  respondent  was  indicted  and  tried  for  commit- 
ting a  rui)e  ujion  one  Lillian  Gray.  The  said  liillian  Gray  was 
produced  as  a  witness  by  the  state,  and  in  her  testimony,  gave  a 
particular  history  of  the  transaction,  and  charged  the  resj/ondent 
directly  with  the  commission  of  the  crime,  and  gave  the  time, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


4 


I 


1.0 


I.I 


11.25 


■tt  Ui   12.2 

■luu 


-    6" 


Photographic 

Sciences 

Cbrporalion 


23  WBT  MAIN  STRir 

WIISTIR,N.Y.  MSM 

(716)t72-4S03 


f 


\ 


# 


«? 


■ 


i  i 


C4S 


AMERICAN  CRIMINAL  REPORTS. 


t    }| 


place  and  circumstances  of  its  commission.  The  state  cjilled 
Mrs.  Ladd  as  a  witness,  and  she  was  permitted  to  testify  ajjjainst 
the  respondent's  objection  that  Lillian,  in  response  to  lier  in- 
quiries, about  two  months  after  the  alleged  commission  of  the 
crime,  complained  to  her  of  the  resjwndent's  usage  of  her  us 
above  testified  to;  by  which  we  understand  that  Mrs.  Ladd  testi- 
fied that  Lillian  told  her  the  same  story  that  she  had  testified  to 
in  court.  Two  objections  have  been  urged  against  the  admissi- 
bility of  Mrs.  Ladd's  evidence;  the  first  is,  that  the  complaint 
was  not  made  to  her  within  such  a  period  of  time  as  to  make  it 
admissible.  Evidence  of  this  character  is  only  admissible  as  con- 
firmatory of  tlie  evidence  given  by  tlie  party  upon  whom  the 
rape  is  alleged  to  have  been  committed.  It  was  ruled  by  Ilor,- 
Kovi),  J.,  in  Clarht^s  Case,  2  Stark.,  241,  that  in  a  prosecution 
for  rape,  the  fact  of  a  woman's  having  made  a  comj)laint  soon 
after  the  assault  took  place  is  evidence.  This  rule  has  been 
embodied  into  all  the  text  books  uj^on  evidence;  but  it  has  never 
been  understood  that  mere  lapse  of  time  could  be  made  the  test 
upon  which  the  admissibility  of  such  evidence  depended.  The 
time  that  intervenes  between  the  commission  of  the  crime  and 
the  making  of  the  complaint  is  a  subject  for  the  jury  to  con- 
sider in  passing  upon  the  question  of  the  weight  that  should  bo 
given  to  the  evidence;  so  that  this  objection  was  not  well  taken. 
The  second  objection  was  to  permitting  !Mrs.  Ladd  to  testify  to 
the  particulars  of  the  complaint.  It  was  held  in  darkens  Case, 
above  cited,  that  the  particulars  of  the  complaint  could  not  bo 
given  in  evidence.  The  rule  is,  that  it  is  competent  to  ])rovo 
that  the  person  upon  whojn  the  rape  is  alleged  to  have  been 
committed  made  a  comjdaint,  and  that  an  individual,  without 
naming  him,  was  charged  with  its  commission.  In  Regina  v. 
Osborne,  1  (J.  ifc  M.,  022  (41  E.  C.  L.,  338),  after  the  witness  liad 
testified  that  the  prosecutrix  made  complaint,  and  charged  a  par- 
ticular person  with  the  commission  of  the  rape,  it  was  proposed 
to  ask  her  whose  name  was  mentioned  by  the  prosecutrix,  and 
the  court  held  that  it  was  not  permissible.  See  also  lieg'ma  v. 
Jfeysoii  etal.,  9  C.  it  P.,  41 S,  and  lle(j.  v.  Guttfhhjes  et  ah,  id.,  471. 
This  objection  we  think  was  well  taken.  The  exception  taken 
to  the  charge  of  the  court  has  to  be  considered  with  reference  to 
the  facts  disclosed  by  the  evidence,  and,  as  ajiplicable  to  this 
case,  we  think  it  was  unexceptionable.    There  is  no  rule  upon 


STATE  V.  NILES. 


649 


3  stafc  called 
estify  a<^ain6t 
se  to  her  in- 
lission  of  the 
ige  of  her  r.s 
rs.  Ladd  testi- 
ad  testified  to 
t  the  admissi- 
the  complaint 
as  to  make  it 
issiljle  as  con- 
>oii  whom  the 
nled  by  IIol- 
a  prosecution 
implaint  soo)i 
•ule  has  been 
ut  it  has  never 
made  the  test 
upended.     The 
the  crime  and 
c  jury  to  con- 
that  should  he 
lot  well  taken. 
Id  to  testify  to 
Clarl'e\'<  Case, 
:  could  not  be 
jtent  to  jirove 
to  have  been 
idual,  without 
In  licgina  v. 
le  witness  had 
char<^ed  a  par- 
was  ])ropo8ed 
'osecutrix,  and 
Iso  Jicfjlna  V. 
eta?.,  id.,  ill. 
cception  taken 
h  reference  to 
icable  to  this 
no  rule  upon 


the  subject,  of  universal  application;  and  in  the  adoption  of  a 
rule  for  this  case,  the  court  might  well  take  into  consideration 
the  age  and  physical  strength  of  the  girl  upon  whom  the  rape 
was  alleged  to  have  been  committed,  and  the  relation  she  sus- 
tained to  the  resi)ondent,  and  all  the  other  circumstances  dis- 
closed by  the  evidence. 
Judgment  reversed,  and  cause  remanded. 

NoTK.  —  In  Sfephciis  r.  Sfntfi,  11  Ga.,  225,  the  court  nso  this  language:  "Tlie 
law,  to  be  sure,  has  said,  by  implication  at  least,  that  when  consent  is  given,  after 
Ion  years  of  age,  a  rape  cannot  exist.  But  this,  after  all,  is  a  mere  presumption, 
and  may  be  rebutted.  Has  it  been  overcome  by  sufficient  evidence  in  the  pres- 
ent case? 

"  The  parents  testify  that  their  daughter  is  sickly  and  weakly,  and  poorly  gi-own. 
H'  mother  sweai-s  that  she  is  nothing  but  a  child;  that  she  has  never  had  her 
monthly  coui-ses;  and  that  there  wiis  no  appearance  of  woomanhood  about  her. 
Is  this  weak  minded  creature,  as  she  is  shown  to  be,  and  on  which  account  partly 
she  was  not  brought  as  a  witness  on  the  stand,  capable  of  consent  to  such  a  deed; 
could  she  have  sought  her  owni  gratification?  *  *  *  Believing,  as  I  do  from 
the  evidence,  that  the  passions  of  this  girl  had  not  anived  at  that  maturity  to 
authorize  a  supposition  of  sexual  intercourse,  irifh  her  comment,  and  seeing  that 
her  person  has  been  most  shamefully  outraged,  I  would,  were  I  in  the  juiy  box, 
seize  upon  the  slightest  proof  of  resistance  ^notwithstanding  she  may  have  been 
enticed  to  give  her  consent  in  the  fii-st  instance  —  even  the  usual  struggles  of  a 
modest  maiden,  joung  and  inexperienced  in  such  mysteries,  to  find,  in  just  such 
a  case,  that  the  act  was  against  Jier  will,  and  that  the  presumption  of  law  was  so 
strong  us  to  amount  to  proof  of  force." 

So  in  ]Vrif/ht  v.  State,  4  Humph.  (Tenn.),  194,  where  the  prosecutrix  was  a 
child  just  over  th(}  age  of  consent,  a  charge  that  "  It  is  no  difference  if  the  person 
abused  consented  through  fear,  or  that  she  was  a  common  prostitute,  or  that  she 
asscnt*.'d  after  the  fact,  or  that  she  was  taken  fii-st  with  her  own  consent,  if  she 
were  aftenvards  forced  against  her  will,"  was  held  to  be  con-ect. 

Where  the  prosecutrix  was  fifteen  years  of  age,  and  the  defendant  a  man  of 
thirty-five,  the  court  said:  "The  age  of  the  prosecutrix  is  always  important  to 
be  considered  in  such  cases,  It  is  held  that  if  under  twelve  yeai-s  of  age  (by  our 
statute,  ten,  §  4204)  she  is  incapable  of  consent.  If  she  is  very  young,  though 
over  this  age,  and  ol  mind  not  enliglitened  on  the  question,  this  consideration 
will  leiul  the  jurj-  to  demand  a  less  clear  oppositioi.  than  if  she  were  older  and 
more  intelligent."      Stale  r.  Cross,  12  Iowa,  66. 

So  in  Peojile  r.  Lijwh,  2'J  Mich.,  274,  whei-e  the  prosecutrix  was  an  undevel- 
oped girl,  not  quite  fourteen  years  of  age,  the  following  charge  was  held  correct : 
"  Now,  it  has  been  said  that  no  conviction  should  be  hatl  for  rai^e  where  the  cir- 
cumstance of  the  resistance  was  equivocal,  and  this  applies  jvith  a  very  large  de- 
gree of  force  to  the  case  of  an  adult  female,  one  who  is  supposed  to  be  old  enough 
to  comprehend  the  nature  of  such  an  act,  and  the  purpose  of  it.  *  *  *  What 
was  the  age  of  this  child?  Had  she  an-ived  at  such  an  age  that  she  was  capable 
of  compreheniling  the  nature  of  the  act?  Did  she  comprehend  it  when  she  dis- 
covered him,  if  that  wiis  the  fact,  upon  her  body,  liis  naked  person  in  contact 


pi 


^■■J- 


660 


AMERICAN  CRIMINAL  REPORTS. 


with  hers,  and  found  thiit  she  was  being  l\\ai?  Did  she  comprehend  the  nature 
of  the  act,  if  she  had  not  arrived  at  the  age  of  puberty?  Was  she  of  that  tender 
age  when  she  might  not  have  any  more  knowledge  or  idea  of  it  than  some  other 
child  under  ten  years  of  age.  *  •  *  She  might  not  be  able,  from  any  vohtion 
of  her  o\vn,  to  consent  or  dissent  any,  more  than  a  child  under  tt>n  years  of  age, 
because  she  might  know  nothing  about  whether  the  act  was  uyurious,  or  would 
be  injurious,  or  of  its  possible  or  probable  consequences." 


SiiiKwiNV^.  People. 

(69111.,  55.) 

Rape:    Evidence  —  Practice  —  Improper  remarks  of  court  in  presence  of  jury  — 

Continuance. 

Respondent  Ijeing  arraigned  on  the  14th,  liis  trial  was  set  for  the  18th.  On  the 
14th  he  had  his  subpoenas  issued,  but  a  material  witness  in  his  behalf  could 
not  be  served,  being  temporarily  absent.  On  these  facts  being  shown  to  the 
court  by  affidavit,  it  was  held  that  a  motion  for  a  contbiuance  should  have 
been  granted,  and  to  refuse  it  was  error. 

On  a  trial  for  rape,  where  the  prosecutrix  testified  that  at  the  time  of  the  act 
she  was  unconscious,  and  did  not  know  whether  defendant  liad  ravished  her, 
and  a  physician,  who  exammed  her  had  been  allowed  to  testify  that  some 
body  had  liad  sexual  intercourse  with  her,  it  wiis  held  that  the  ni^poiident 
had  a  right  to  prove  previous  particular  acta  of  sexual  intorcourse  betwe-n 
the  prosecutrix  and  othei*s. 

An  improper  remark,  prejudicL'.i  to  tlie  respondent,  made  by  the  court  in  ruling 
out  testimony,  is  en'or. 

McAllistku,  J.  An  imlictment,  charging  j)laintiff*  in  error 
"with  tlie  crime  of  rape  upon  one  BertliaKanunski,  was  presented 
in  the  criiuinal  court  of  Cook  county,  July  12,  1S73,  wliereupon 
a  capias  issued,  upon  which  the  accused  was  arrested  and  com- 
mitted to  triah 

On  Monday,  the  1-itli  of  the  same  month,  the  accused  was  ar- 
raigned, and  the  i)lea  of  not  guilty  entered.  The  court  then  or- 
dered the  case  to  he  set  for  trial  on  the  next  succeeding  Friday, 
being  the  ISth  of  the  same  month. 

On  the  day  of  the  arraignment,  accused  proceeded  to  j^reparo 
for  his  trial,  by  causing  a  suh])ama  to  be  issued  for  his  witnesses, 
among  whom  was  one  Mary  Kehoe.  This  subpoMia  was  then 
phiced  in  the  hands  of  an  agent  employed  to  serve  it,  who  used 
all  the  diligence  practicable,  within  the  time  allowed,  but  was 


SHIRWIN  V.  PEOPLE. 


651 


unable  to  serve  it  upon  said  Mary  Kehoe,  by  reason  of  her  ab- 
sence beyond  tlie  reach  of  the  subpoena.  When  the  case  was 
called  for  truil,  on  the  day  fixed  by  the  court,  the  accused  pre- 
pared and  presented  to  the  court  his  affidavit,  upon  which  he 
asked  that  the  trial  of  the  cause  might  be  put  oft'  until  the  August 
term,  a  jjeriod  of  only  about  three  weeks,  in  order  to  enable  him 
to  procure  the  testimony  of  said  Mary  Ivehoe,  who  was  shown  to 
be  only  temporarily  absent  from  the  city  of  Chicago,  and  was 
expected  to  return  in  time  for  the  next  term  of  cou^t. 

The  facts  set  forth,  which  the  accused  expected  to  prove  by 
the  absent  witness  were,  that  the  complaining  witness.  Bertha 
Kaminski,  had,  since  the  l;ime  at  which  she  claimed  the  offense 
was  committed,  told  Mary  Kehoe  that  the  accused  was  not  guil- 
ty of  a  rape  U]>on  her,  but  that  she  (Bertha)  wanted  to  make 
some  money  out  of  him ;  and  upon  said  Mary  Kehoe  answering 
that  the  accused  had  no  money,  the  said  Bertha  replied  that  he 
had  rich  relations,  and  was  connected  with  the  city  government, 
and  that  accused  or  his  friends  would  pay  her  well  to  drop  the 
prosecution. 

The  court  overruled  the  motion  for  continuance,  and  ordered 
the  trial  to  proceed,  which  resulted  in  a  verdict  of  guilty,  and 
fixed  the  punishment  at  five  years  in  the  penitentiary. 

The  court  overruled  a  motion  for  a  new  trial,  and  gave  judg- 
ment in  accordance  with  the  verdict.  These  matters,  together 
with  the  evidence  and  rulings  of  the  court  upon  the  trial,  are 
presented  in  a  bill  of  exceptions,  and  the  case  brought  here  by 
writ  of  error. 

By  our  practice,  error  may  be  assigned  upon  overruling  a  mo- 
tion for  continuance  as  well  as  for  a  new  trial. 

If  the  affidavit  for  a  continuance  presented  a  proper  case,  it 
was  error  to  overrule  the  application.  The  essential  requisites 
for  such  affidavit  are  these: 

First.  The  name  and  residence  of  the  witness;  that  he  is 
really  material,  and  shown  to  the  court,  by  the  affidavit,  to  be  so. 

Second.  That  the  party  who  applies  has  been  guilty  of  no 
neglect,  or,  in  other  words,  shows  the  exercise  of  proper  diligence. 

Third.  That  the  witness  can  be  had  at  the  time  to  which  it 
is  sought  to  have  the  trial  of  the  cause  deferred. 

If  the  facts  set  forth  in  the  affidavit  of  the  accused,  which  he 
expected  to  prove  by  the  absent  witness,  M'ere  really  material, 


ik 


652 


AMERICAN  CRIMINAL  REPORTS. 


and  shown  to  the  court  to  be  so,  then  this  affidavit  was  sufficient, 
because  in  all  other  respects  it  is  so  clearly  and  manifestly  with- 
in the  rules  as  to  admit  of  no  criticism.  The  question,  and  the 
only  question  arising  upon  this  affidavit  is,  the  materiality  of  the 
facts  expected  to  be  proven  "by  the  absent  witness,  and  that 
scarcely  admits  of  argument.  The  affidavit  shows  that  accused 
knew  of  no  other  witness  by  whom  these  facts  could  bo  proven. 
The  indictment  was  for  rape  ujion  Bertha  Kaminski,  and  the  af- 
fidavit shows  what  is  but  an  ordinary  presumption,  from  the  in- 
dictment itself,  that  she  was  the  complaining  witness.  It  was 
apparent  therefore,  and  to  be  expected,  that  she  woidd  be  the 
only  witness  in  support  of  the  charge;  and  as  the  law  closes  the 
lips  of  the  defendant,  his  only  hope  of  defense,  if  innocent,  con- 
sisted in  controverting  the  evidence  of  the  fact  of  the  force,  ad- 
duced by  her,  by  means  of  cross-examination,  impairing  her 
credibility  by  disproving  circumstances  stated  by  her,  or  show- 
ing declarations  made  by  her  out  of  court  inconsistent  with  her 
evidence  upon  the  witness  stand.  "  It  is  to  be  remomborod," 
says  Greenleaf,  "  as  has  been  justly  observed  by  Lord  Ilale,  that 
it  is  an  accusation  easily  made,  hard  to  be  proved,  and  still  hard- 
er to  be  defended  by  one  ever  so  innocent."  3  Greenl.  Ev.,  sec. 
212. 

"When  the  nature  of  the  charge  is  considered,  and  the  various 
motives  which  may,  and  doubtless  •  many  instances  have,  actu- 
ated women  to  make  unfounded  cha  "ges  of  this  character,  as,  for 
revenge,  to  extort  money,  as  an  excuse  on  their  part  for  a  sin  of 
a  less  odious  character,  is  it  not  obvious  that  evidence  introduced, 
upon  a  proper  foundation  being  laid,  that  the  prosecutrix  had 
declared  that  the  accused  was  not  guilty,  had  admitted  that  the 
prosecution  was  carried  on  for  the  sole  purpose  of  extorting 
money,  would  be  material?  The  proposition  does  not  admit  of 
controversy,  and  it  was  manifest  error  to  overrule  the  motion  of 
plaintiff  in  error  for  a  continuance. 

The  second  error  assigned  is,  that  tlie  court  excluded  proper 
evidence  offered  in  behalf  of  the  defense,  viz.:  Evidence  tend- 
ing to  show  that  the  prosecutrix,  prior  to  the  time  in  question, 
had  had  cjirnal  intercourse  with  other  men.  It  is  the  general 
rule  that  the  character  of  the  prosecutrix  for  chastity  may  be  im- 
peached, but  this  must  be  done  by  general  evidence  of  her  repu- 
tation in  that  respect,  and  not  by  evidence  of  particular  instances 


'I!::;: 


SHERWIN  t',  PEOPLE. 


653 


sec. 


of  unchastity.  Rex  v.  Clarke,  2  Stark.,  241 ;  Raoc  v.  Barker, 
3  C.  &  P.,  589;  The  People  v.  Ahhott,  19  AVend.,  192.  The 
latter  case  holds  that  the  prosecittrix  may  be  shown  to  be  in  fact 
a  common  prostitute;  that  previous  voluntary  connection  be- 
tween her  and  the  prisoner  may  be  shown,  and  tliat  evidence  may 
be  given  of  particular  acts  anc!  associations  indicating,  on  her 
part,  a  want  of  chastity.  The  admissibility  of  all  this  class  of 
evidence  is  placed  upon  the  ground  that  an  unchaste  woman 
would  be  more  likely  to  consent  to  the  act  than  a  virtuous  one, 
and  therefore  her  previous  connection  with  the  accused,  or  her 
general  reputation  for  want  of  chastity,  are  proper  ingredients 
in  determining  the  question  whether  the  particular  act  in  con- 
troversy was  accomplished  solely  by  force,  or  with  her  virtual 
consent. 

In  tl;'':  case,  however,  the  question  arises  in  a  wholly  differ- 
ent aspect.  The  prosecutrix  does  not,  nor  does  any  other  wit- 
ness, testify  to  the  commission  of  a  rape  or  any  carnal  inter- 
course at  the  time  in  question. 

She  says  she  became  insensible,  and  does  not  know  whether 
the  accused  consummated  the  act  or  not;  and  to  supplement  this 
lack  of  direct  evi<lence,  the  state's  attornev  called  as  a  witness  a 
physician,  who  examined  her,  three  weeks  after  the  alleged  oc- 
casion, and  who  gives  it  as  his  opinion  that  she  did  not  then 
bear  the  j)]iysical  evidence  of  virginity,  and  had  had  carnal  in- 
tercourse with  some  man,  by  means  of  which  such  evidences 
were  destroyed. 

Upon  this,  of  course,  it  was  argued  that  they  were  destroyed 
by  the  accused,  and  by  a  forcible  carnal  coimection  with  her,  al- 
though she  knew  nothing  about  it,  she  being,  as  she  claims,  un- 
conscious at  the  time. 

Such  beiiig  the  state  of  the  case,  was  it  not  competent  to  re- 
but that  inferei  ce  by  showing  either  a  previous  voluntary  con- 
nection M'ith  the  accused,  or  particular  instances  of  unchastity 
with  any  other  man?  The  circumstances  of  the  case  seem  to 
take  it  wholly  out  of  the  general  rule,  which  excludes  evidence 
of  particular  instances  of  unchastity  with  persons  other  than  the 
accused.  The  prosecution  was  required  to  satisfy  the  jury,  be- 
yond a  reasonable  doubt,  that  the  crime  had  been  in  fact  com- 
mitted. This  could  not  be  done  upon  tiie  evidence  of  the  prese- 
cutrix  alone.     She  could  not  so  testify.    She  said  she  did  not 


^J 


654 


AMERICAN  CRIMINAL  REPORTS. 


■ 

m 


i  \ 

m 


know  whether  it  was  committed  or  not.  The  testimony  of  the 
doctor  as  to  the  physical  iiulicia,  that  she  had  had  carnal  inter- 
course with  some  man  was,  therefore,  vital.  It  must  have  been 
the  controlling  circumstance  from  which  the  criminality  of  the 
accused  was  inferred.  Now,  can  it  be  maintained  that,  although 
such  a  circumstance  may  be  given  in  evidence  to  criminate  the 
accused,  yet,  if  he  cannot  account  for  such  physical  indicia,  ex- 
cept  by  showing  particular  instances  of  unchastity  with  persons 
other  than  himself,  he  shall  not  be  allowed  to  do  it  at  all?  The 
law  is  not  so  unreasonable.  The  right  of  the  accused  to  defend 
must  be  as  broad  as  tlip.t  of  the  prosecution  to  criminate.  If 
such  a  circumstance  is  admissible  for  the  purpose  of  an  infer- 
ence of  criminality,  then  it  must  be  competent  to  explain  or  ac- 
coimt  for  the  circumstance  itself,  by  showing  tliat  it  existed 
fi'om  causes  entirely  independent  of  the  alleged  criminal  act  of 
the  defendant.  In  order  to  explain  or  account  for  these  physical 
indicia,  it  was  competent  for  the  accused  to  introduce  any  le- 
gitimate evidence  tending  to  show  either  a  voluntary  connection 
between  the  prosecutrix  and  himself,  or  any  other  man,  prior  to 
the  time  of  the  examination  by  the  doctor.  And  he  should, 
moreover,  be  at  liberty  to  show,  if  he  can,  by  otiier  medical  tes- 
timony, that  the  theory  of  the  doctor  was  unreliable. 

The  counsel  for  plaintift'  in  error  sought  to  la}'  the  founda- 
tion for  an  inference  of  voluntary  intercourse  between  him  and 
the  prosecutrix,  while  she  lived  at  the  house  of  his  step-father, 
by  inquiring  of  the  latter  as  to  her  habits  of  following  plaintiff 
in  error  about  the  house. 

Upon  this  evidence  being  objected  to  by  the  state's  attorney, 
the  court  said:  "I  do  not  think  it  competent,  and  even  if  she 
did  follow  him,  it  would  not  ohow  she  wanted  a  rape  committed 
tipoii  Atf/y"  and  the  evidence  was  excluded.  The  evidence  was 
offered  for  a  legitimate  purpose,  and  might  have  been  compe- 
tent as  a  preliminary  inquiry.  The  remark  of  the  court  could 
not  have  been  otherwise  than  prejudicial  to  tiie  accused,  and  was 
not  proper  even  if  the  evidence  was  properly  excluded.  Fisher 
V.  The  People,  23  III,  283. 

The  judgment  of  the  court  below  will  be  reversed  and  the 
cause  remanded.  Judgment  reversed. 


^:if 


Hi 


BOXLEY  r.  COMMONWEALTH. 


655 


BoxLKY  VS.  Commonwealth. 

(24  Gmtt.,  Va.,  049.) 

Rape:    Evidence — Surprise. 

The  evidence  set  forth  in  the  opinion  in  this  case  was  held  insufficient  to  sus- 
tain a  conviction  for  rape. 

Where  the  testimony  of  the  principal  witness  for  the  prosecution,  on  the  trial, 
varies  materially  from  that  given  by  her  before  the  committing  justice,  who 
was  unexpectedly  absent  from  the  trial,  the  prisoner  is  entitled  to  a  new  trial 
on  the  ground  of  surprise. 

At  the  July  term  of  tlie  county  court  of  Halifax,  Wilson 
Boxley,  colored,  was  indicted  for  a  rape  upon  Martha  II.  Spen- 
cer. At  the  same  term  of  the  court  he  was  brought  to  the  bar, 
and  being  arraigned,  pleaded  not  guilty,  and  on  his  motion  the 
case  was  continued.  He  was  thereupon  remanded  to  the  circuit 
court  of  the  county  for  trial  at  the  September  term;  and  on  his 
motion,  he  M'as  allowed  to  give  bail  for  his  appearance  at  the  cir- 
cuit court. 

At  the  September  term  of  the  circuit  court,  Boxley  appeared, 
and,  upon  his  trial,  was  found  guilty  by  the  jury,  who  assessed 
the  term  of  his  imprisonment  in  the  penitentiary  at  two  years. 
The  prisoner  thereupon  moved  the  court  to  set  aside  the  verdict 
and  grant  him  a  new  trial,  on  the  ground  of  surprise,  and  be- 
cause the  verdict  was  contrary  to  the  evidence;  and  he  filed  his 
own  affidavit  and  the  affidavit  of  H.  B.  Melvin,  the  justice  who 
committed  him,  to  show  that  the  principal  witness  had  varied 
materially  in  her  evidence  before  the  jury  from  her  statements 
before  the  committing  justice. 

The  court  overruled  the  motion,  and  sentenced  the  prisoner 
in  accordance  with  the  verdict,  and  the  prisoner  excepted;  and 
upon  his  application  a  writ  of  error  was  awarded. 

The  facts  are  sufficiently  stated  in  the  opinion  of  the  court. 

Davis,  for  the  prisoner. 

T/ie  Attorney  General,  for  the  commonwealth. 

BouLDiN,  J.  Several  objections  have  been  taken  by  the  coun- 
sel for  the  plaintiff  in  error  to  the  judgment  of  the  court  below 
in  this  case,  involving  questions  of  both  law  and  fact,  and  have 
been  argued  with  much  learning  and  ability;  but  in  the  view 
taken  of  the  case  bv  this  court,  we  deem  it  necessary  to  consider 


:i 


I 


C6Q 


AMERICAN  CRIMINAL  REPORTS. 


Kb    1- 1  j  "« 


only  the  questions  arising  nnder  the  last  assignment  of  error. 
After  the  jury  had  rendered  a  verdict  of  guilty,  and  fixed  the 
term  of  the  ])ri8oner'8  confinement  in  the  penitentiary  at  ten 
years,  he  moved  the  court  to  set  aside  the  verdict  and  award  him 
a  new  trial,  on  the  following  grounds: 

1.  liecause  the  verdict  had  been  obtained  by  surprise. 

2.  Because  it  was  not  sustained  by  the  evidence. 

The  court  overruled  the  motion,  and  sentenced  the  prisoner  to 
ten  years'  confinement  in  the  penitentiary.  To  this  ruling  the 
prisoner  excepted,  and  prayed  the  court  to  certify  the  facts 
proved  on  the  trial,  which  was  done  accordingly. 

"We  are  of  o]nnion  that  the  circuit  court  erred  in  refusing, 
under  all  the  circumstances  of  the  case,  to  grant  the  new  trial. 

Without  recapitulating  or  very  critically  analyzing  the  testi- 
mony, we  are  compelled  to  say  that  the  evidence  adduced  to  es- 
tal)lish  the  felonious  act  —  the  corpus  delicti  —  is,  to  say  the 
least  of  it,  of  a  very  doubtful  and  inconclusive  character.  It  con- 
sists exclusively  of  the  statements  of  the  person-  upon  whom  the 
oftense  is  charged  to  have  been  committed,  and  is  certified  Ijy 

the  court  as  follows:     "  On  the day  of  June  1873,  it  being 

Sunday,  about  12  o'clock  M.,  Miss  Martha  Spencer  was  at  the 
spring  (which  is  about  one  hundred  yards  from  her  father's 
liouse),  had  filled  her  bucket  and  was  sitting  down  on  a  rock  at  the 
spring;  while  sitting  there,  some  one  came  up  behind  her  and 
seized  her  by  the  shoulders,  pulled  her  over  backwards,  her  bon- 
net falling  over  her  eyes;  the  person  making  the  attack  spoke 
to  her  in  a  low  tone,  and  told  her  "  not  to  make  a  noise"  (a  sug- 
gestion which,  for  some  reason,  she  seems  to  have  duly  re- 
fcpected).  "  She  screamed  once"  (whether  in  a  similar  tone  or 
not  does  not  appear);  "but  the  bonnet  was  held  over  her  mouth 
and  eyes  so  that  she  was  unable  to  make  further  outcry,  and 
could  only  catch  a  glimpse  of  her  ravisher.  lie)' anna  loere  not 
confined^  and  she  made  an  attempt  to  pull  the  bonnet  away  from 
her  eyes.  She  was  very  weak  and  nervous,  and  very  umch 
frightened,  and,  notwithstanding  her  resistance,  he  accomplished 
his  purpose,  and  ravished  her." 

This  is  her  own  account  of  the  alleged  criminal  act,  and  it  is 
all  we  have  directly  on  that  subject.  She  proves  no  other  vio- 
lence than  enough  to  draw  her  backwards  by  the  shoulders  from 
her  seat,  and  to  hold  her  bonnet  over  her  face.    Her  person  was 


nv; 


BOXLEY  V.  COMMONWEALTH. 


C57 


oxnniined  by  two  physicians,  and  whilst  they  both  testified  that 
it  was  apparent  that  she  had  l)ad  recent  sexual  intercourse,  they 
also  proved  that  there  was  nothing  to  indicate  that  it  had  been 
accomplished  by  violence;  "that  no  bruises  were  found  about 
the  face,  arms  or  person  of  the  prosecutrix,  except  a  small,  almost 
imperceptible  bruise  under  each  knee." 

It  was  also  proved  that  Miss  Spencer  was  "  a  large,  stout 
■woman,"  and  the  accused  was  a  medium  sized  man,  about 
twenty-three  years  old. 

Can  we  say,  upon  such  testimony,  that  the  criminal  act  has 
been  established  ?  It  would  require  a  large  degree  of  charity  and 
credulity  to  believe  that  at  noonday,  within  one  hundred  yards 
of  her  father's  house,  and  within  two  or  three  hundred  yards  of 
the  house  of  a  neighbor  (William  Spencer),  a  rape  was  perpe- 
trated on  this  largo  and  stout  woman,  with  hofh  hor  arnia  per- 
fectly •/>'€€,  by  a  mediiim-B\zed  man,  who  neither  threatened  her 
with  violence  nor  did  anything  to  disable  her,  and  who,  from  her 
own  account,  had  the  use  of  but  one  arm,  the  other  being  em- 
ployed in  holding  her  bonnet  over  her  face  whilst  the  act  was 
committed;  and  that  all  this  had  been  accomplished  with  no 
noise  to  alarm  the  families  which  were  so  near;  with  not  the 
slightest  indication,  from  the  appearance  of  the  ground,  that 
there  had  been  a  scuffle;  and  with  no  scratch  or  bruise  on  the 
person  of  the  female,  to  show  that  her  chastity  had  not  been  vio- 
lated without  a  struggle!  Such  testimony  we  think  exceedingly 
weak,  to  say  the  least  of  it,  to  show  that  a  rape  had  been  com- 
mitted at  all,  especially  when  it  appears  in  the  record  that  the 
accused,  who  lived  at  her  father's  house,  had  previously,  in  his 
kitchen,  attempted  to  take  improper  liberties  with  Miss  Spencer, 
which  she  does  not  appear  to  have  disclosed  or  resented. 

But  conceding  the  rape  to  be  established,  the  evidence  to  con- 
nect the  accused  with  the  act  is  yet  more  doubtful  and  unsatis- 
factory. Although  the  accused  had  resided  at  her  father's  house 
for  a  year  or  two  previous  to  the  occurrence,  and  was,  of  course, 
well  known  to  the  witness  —  voice,  features,  gestures  and  per- 
son, —  yet  she  does  not  swear  to  his  identity.  He  spoke  to  her 
with  his  face  very  near  to  hers,  yet  she  does  not  say  that  she 
recognized  his  voice.  She  says  she  only  caught  a  "  glimpse  of 
the  lower  part  of  his  face,"  and  only  saw  his  back  "  at  a  distance 
of  about  fifty  or  a  hundred  yards,  running  away."  What  she 
Vol.  I.- 42 


058 


AMERICAN  CRIMINAL  REPORTS. 


i 


was  doing  from  the  time  he  left  her  person  until  ho  reached  tlio 
distance  of  fifty  or  one  hundred  yards,  does  not  appear;  yet, 
when  she  did  see  him,  she  seems  to  have  \)een  perfectly  cool  and 
collected,  for  she  can  tell  that  he  wore  a  dirty  shirt  and  n  black 
felt  hat.  She  says  that,  from  the  glimpse  she  had  of  his  face, 
and  the  sight  she  had  of  his  back  as  he  ran  away,  she  bdieval  it 
was  the  jprisoner.  And  this  was  all  the  evidence  of  identity,  ex- 
cept the  evidence  of  William  Spencer,  who  lived  about  two  or 
three  hundred  yards  from  the  home  of  the  prosecutrix.  IIo 
proves  that  he  saw,  on  what  day  and  at  what  hour  does  not  ap- 
pear, a  man  whom  he  took  to  be  Wilson  Boxley,  walking  very 
rapidly  along  the  road  leading  from  Bannister  Spencer's,  and 
now  and  then  looking  backwards.  He  called  to  him  and  asked, 
"What's  your  hurry?"  but  received  no  answer.  lie  was  one 
luindred  yards  off,  and  witness  was  not  sure  it  was  Boxley. 
"Tne  man  he  saw  wore  a  white  chip  hat^'*  not  a  hlaek  felt  hnt, 
as  proved  by  Miss  Spencer  to  have  been  worn  by  the  person  who 
assailed  her. 

It  was  further  proved  that  the  accused  lived  about  two  miles 
from  the  home  of  Miss  Spencer,  and  that  he  remained  at  his 
work  as  usual  for  three  or  four  days  after  the  occurrence  at  the 
spring,  when  he  was  charged  with  this  ottense  by  the  brothers  of 
Miss  Spencer,  and  beaten  by  them.  He  then  went  to  tlie  court 
house  and  caused  a  warrant  to  be  issued  against  them;  audit 
was  not  until  after  these  proceedings  that  the  present  prosecu- 
tion was  commenced.  We  think  the  evidence  wholly  insuffi- 
cient to  identify  the  prisoner  as  the  guilty  party.  Were  this  not 
60,  the  evidence,  to  say  the  most  of  it,  leaves  the  question  of 
identity  extremely  doubtful,  and,  under  the  circumstances,  the 
verdict  of  the  jury  should  have  been  set  aside,  and  a  new  trial 
awarded,  to  allow  the  accused  the  privilege  of  introducing  the 
testimony  set  forth  in  his  own  aflSdavit  and  that  of  Dr.  Melvin, 
of  which  he  was  evidently  deprived  by  surprise. 

Dr.  Melvin's  testimony,  as  set  forth  in  his  affidavit,  would  still 
further  have  weakened  the  testimony  on  the  question  of  identity. 
He  was  the  committing  magistrate,  and  the  testimony  of  Miss 
Spencer,  as  detailed  by  him,  is  materially  variant  from  her  testi- 
mony in  court;  and  the  facts  set  forth  in  the  prisoner's  affidavit 
satisfactorily  explain  his  failure  to  have  Dr.  Melvin  before  the 
court.    Fnder  all  the  circumstances,  this  court  is  of  opinion  that 


BOXLEY  V.  COMMONWEALTH. 


659 


saclied  tlio 
pear;  yet, 
y  cool  ftiul 
id  fi  black 
I  Ilia  face, 
W'lievi'd  it 
entity,  ex- 
nt  two  or 
trix.  Ho 
es  not  ap- 
viiig  very 
cer's,  and 
md  asked, 
3  was  one 
8  IJoxley. 
/dt  /iut, 
srson  who 

wo  miles 
led  at  his 
!ice  at  the 
rothers  of 
the  court 
n;  and  it 

prosecu- 
y  insnffi- 
e  this  not 
icstion  of 
mces,  the 
new  trial 
ucing  the 
.  Melvin, 

ould  still 
identity, 
'  of  Miss 
her  testi- 
aflidavit 
3fore  the 
lion  that 


the  coiu't  lielow  erred  in  refusing  to  set  aside  the  verdict  and  to 
award  the  prisoner  a  new  trial. 

As  the  cause  must  be  remanded  to  the  circuit  court,  it  becomes 
necessary  to  dispose  of  the  objection  to  the  yirisdiction  of  that 
court,  so  earnestly  and  ably  argued  at  the  bar. 

The  objection  was,  that  as  the  law  stood  on  the  28tli  July, 
1873,  when  the  case  was  transferred  frou)  the  county  to  the  cir- 
cuit court,  the  prisoner  had  a  right  to  be  tried  in  the  county 
court  in  which  his  case  was  pending,  or,  at  Iub  election,  to  be 
sent  for  trial  to  the  circuit  court;  that  he  did  not  elect  to  be  tried 
in  the  latter  court,  and  therefore  bis  case  was  never  legally  pend- 
ing in  that  court. 

It  is  certainly  true  that  on  the  25th  of  July,  1873,  the  prisoner 
bad  a  right  to  be  tried  in  the  county  court,  where  his  case  was 
pending;  but  it  is  equally  true  that  the  county  court  had  then 
undoubted  authority,  on  the  election  of  the  prisoner  or  by  his 
consent,  to  transfer  the  case  to  the  circuit  court.  It  is  further- 
more true  that  on  the  1st  day  of  August  thereafter,  the  jurisdic- 
tion of  the  county  court  to  try  the  case  would  cease;  and  by  the 
mandate  of  the  law  it  would,  without  the  prisoner's  consent,  be 
transferred  io  the  circuit  court.  On  the  prisoner's  motion,  the 
case  had  already  been  continued  to  the  next  term  of  the  court, 
and  his  right  to  be  tried  in  the  county  court  was,  in  efi'ect,  for- 
ever gone,  for  in  three  days  the  new  law,  depriving  the  county 
courts  of  jurisdiction  in  the  case,  would  go  into  efi'ect.  This  was 
all  well  known  to  the  court  and  to  the  counsel  on  both  sides,  and 
it  is  reasonable  to  conclude  that,  acting  on  that  knowledge,  the 
transfer  to  the  circuit  court  was  made  with  the  consent  and  ap- 
probation of  the  accused.  "We  think  so,  because,  under  the  cir- 
cumstances then  existing,  it  was  manifestly  to  his  interest  to  give 
that  consent,  and  because  he  not  only  made  no  objection  whatso- 
ever to  the  transfer,  but  immediately  thereafter  applied  to  be  al- 
lowed to  give  bail  for  his  appearance  in  the  circuit  court,  which 
was  allowed  him  and  was  given;  and  because  he  appeared  in  that 
court  in  discharge  of  his  recognizance,  and  submitted  to  his  trial 
without  indicating  the  slightest  objection  to  the  jurisdiction  of 
the  court.  He  was,  in  fact,  exactly  where  he  would  have  been 
had  no  transfer  been  made,  with  the  advantage  of  a  full  oppor- 
tunity to  meet  the  charge  in  the  court  in  which  it  was  absolutely 


i 

■ 

1  [■  .^J^** 

; 

660 


AMERICAN  CRIMINAL  REPORTS. 


necessary,  under  the  law,  which  was  just  about  to  go  into  effect, 
that  he  should  be  tried. 

Under  such  circumstances,  we  are  fully  justified  in  reaflun«» 
the  conclusion  that  the  transfer  was  in  fact  made  with  the  pris- 
oner's consent,  and  the  circuit  court  therefore  had  jurisdiction. 
We  arrive  at  this  conclusion  the  more  readily  because  it  is  now 
evidently  to  the  advantage  of  the  prisoner.  lie  must  be  tried  in 
the  circuit  court,  and  is  now  in  confinement,  and  it  might  seri- 
ously  prolong  that  confinement  were  he  compelled  to  go  throuHi 
the  inconvenience  and  useless  form  of  sending  the  case  to  tlio 
county  court,  to  be  by  that  court  immediately  sent  kick  where  it 
now  is. 

The  judgment  of  the  circuit  court  must  be  reversed,  the  verdict 
set  aside,  and  a  new  trial  awarded. 


'Vll 


Note. — In  People  r.  Dohring,  59  N.  Y.,  374,  which  was  a  prosocution  for 
rape,  the  defendant's  counsel  asked  the  couit  to  charj^e  the  jniy,  "  that  thiy 
must  be  satisfied  from  the  evidence,  before  finding  the  prisoner  guilty,  that  tlie 
prosecutrix  resisted  him  to  the  ext<Mit  of  her  ability  on  the  occiusii)n.  The  court 
declined  to  charge  the  jury  in  these  words,  but  did  charge  that  the  act  nuist  l:ave 
been  done  by  force,  and  against  tliewill  and  Resistance  of  the  prosecutrix,  without 
saying  how  forcible  and  continued,  or  how  feeble  and  yielding  that  resistance 
might  be."  On  this  head  the  court  of  apjwals  say  that  although  the  charge  was 
sound  law,  that  "  coupled  with  the  refuKal  to  charge  a-s  requested,  it  failed  to  ox- 
press  all  that  was  necessarj*  for  the  jurj*  to  find.  The  resistance  must  be  up  to 
the  point  of  Ix'ing  overpowered  )>y  actuixl  force  or  of  inability  from  loss  of  strength 
lo,  or  to  resist,  or  from  the  numbi'r  of  persons  attacking,  resistance  must  be 
dangerous  or  absolutely  useless,  or  there  nmst  be  duress  or  fear  of  death."  It  was 
held  that  the  refusal  to  charge  as  reipiested  was  error. 

Tills  case  contains  a  full  citation  of  authorities  sustauiing  the  decision  on  this 
head. 


People  vs.  Clark. 

(.^3  Mich.,  112.) 

Seduction  :    Ehclion- — Practice  —  Evklence. 

On  the  trial  of  an  information  for  seduction,  containing  three  counts,  covering 
three  distinct  transactions,  the  prosiecution  wll  not  be  allowed  to  go  to  the  juiy 
on  more  than  one  act,  and  having  introduced  eridenco  tending  to  prove  one 
of  the  acts  charged,  this  will  be  treated  as  an  election,  and  thereafter  no  evi- 
dence ad  to  the  other  acts  charged  is  admissible. 


TIC 


PEOPLE  V.  CLARK. 


661 


ision  on  this 


On  a  trial  for  seduction,  evidence  of  illicit  intercourse  between  the  parties,  sub- 
sequent to  the  alleg-nd  seduction,  is  in-elevant  and  inadmissible. 

To  constitute  the  crime  of  seduction,  the  woman  must,  relying  upon  some  suf- 
ficient promise  or  inducement,  be  drawn  asiiTe  from  the  path  of  vurtue  she 
virus  honestly  jiui-suing  at  the  time  the  ottense  chargetl  was  committed. 
Where  the  evidence  showed  that  the  parties  had  ilUcit  intercouree  whenever 
opportunity  otTered,  a  promise  of  maniage  at  iiny  such  acts  would  not  make 
tlic  act  seduction. 

On  the  triid  of  an  infonnation  for  seduction,  the  chastity  of  the  female  at  the 
time  of  the  alleged  seduction  is  involved,  and  the  defendant  has  a  right  to 
ask  hor  on  cross-examination,  whether,  prior  to  the  alleged  seduction,  she 
had  had  illicit  intercoui-se  with  another. 

On  the  trial  of  an  information  for  seduction,  it  is  competent  for  the  defense  to 
give  evidence  to  show  a  plan  between  the  female,  her  father  and  mother,  to 
inveigle  the  defendant  into  a  miin-iage,  and,  failing,  to  prosecute  liim. 

It  is  proper  to  prove  by  medical  experts,  that  acts  of  sexual  intercourse,  which  had 
been  testifH^d  to,  wore,  owing  to  the  situation  of  the  paiiies,  i.  e.,  in  a  buggy, 
and  tliei)ain  whidi  would  have  resulted,  highly  improbable,  if  not  impossible. 

Exceptions  fro;n  Calhoun  Circuit. 

Anderson  J.  Smith,  Attorney  General,  for  the  people. 

John  C.  Fitzgerald  and  C.  I.  Walker,  for  respondent. 

IMaustox,  J.  The  defendant'  was  convicted  for  the  seduction 
of  Alice  J.  ^[orcy.  There  were  three  counts  in  the  information: 
the  first  charged  him  with  committing  the  oftense  on  the  28th 
day  of  July,  1873,  in  the  county  of  Calhoun;  the  second,  with  the 
commission  of  a  like  oft'onse,  on  the  same  day,  in  the  township 
of  Peniield,  in  said  county,  and  the  third,  with  a  like  offense,  un- 
der and  l>y  means  of  a  promise  of  marriage,  on  the  same  day,  in 
the  county  of  Callioun. 

Upon  the  trial,  the  prosecution  introduced  the  complaining 
witness,  who  gave  evidence  tending  to  prove  an  act  of  seduction, 
in  the  town  of  Penfield,  July  28,  1873.  The  prosecution  then 
offered  to  prove  a  distinct  and  subsequent  act  of  seduction,  stat- 
ing, for  the  first  time,  that  they  relied  u])on  this  instance,  and 
not  the  oik;  already  proven,  for  conviction.  This  was  objected 
to,  hut  admitted,  the  court  remarking  that  the  prosecution  would 
liave  to  elect  one  particular  act  or  transaction  to  put  before  the 
jury.  The  prosecution  then  offered  to  prove  a  third  distinct  act, 
which  occurred  subsequent  to  the  first  act,  proven  to  have  taken 
place  in  the  town  of  Penfield,  but  prior  to  the  second  act  already 
proven.     This  was  also  objected  to,  but  admitted. 

After  the  close  of  the  argument,  but  before  the  court  charged 


i 

\ 


662 


AMERICAN  CRIMINAL  REPORTS. 


5  v5< 


the  jury,  the  prosecuting  attorney  stated  to  the  court,  in  the  hear- 
ing of  the  jury,  tliat  he  relied  upon  the  last  act  of  intercourse 
which  was  the  second  proved,  and  that  if  the  court  desired  him 
to  elect,  ho  would  elect  that  act;  no  election,  however,  was  made* 
and  the  court  charged  the  jury  that  it  was  sufficient  if  the  prose- 
cution had  proved  the  offense  committed  at  any  time  within  a 
year  prior  to  the  2'4th  of  June,  1874,  that  being  the  time  when 
the  prosecution  was  commenced;  and  refused  to  charge,  that  the 
prosecution  having  first  put  in  evidence  tending  to  show  that  the 
defendant  committed  the  oft'ense  in  Penfield,  on  the  28th  of  Julv, 
they  were  not  at  liberty  to  prove  any  subsequent  offense  commit- 
ted elsewhere  for  any  purjwse;  and  that  the  jury  conld  not  con- 
sider the  evidence  of  such  subsequent  offense  for  any  purpose 
whatever. 

It  was  decided  in  Peojjle  v.  Jenness,  5  Mich.,  327,  that  the 
prosecution,  before  the  evidence  was  introduced,  could  select  any 
one  act  of  criminal  intercourse,  such  as  was  charged  in  the  in- 
formation, which  occurred  within  the  jurisdiction  of  the  court, 
and  within  the  statute  of  limitations,  but  when  evidence  had 
been  introduced  tending  directly  to  the  proof  of  one  act,  for  the 
purpose  of  procuring  a  conviction  upon  it,  the  prosecutor  had 
thereby  made  his  election,  and  could  not  be  allowed  to  prove 
any  other  act  of  the  kind  as  a  substantive  oft'ense  upon  which  a 
conviction  might  be  had  in  the  cause. 

Upon  this  question  we  consider  the  ruling  in  that  case  decisive. 
The  act  alleged  to  have  been  committed  in  the  buggy,  in  the 
town  of  Penfield,  being  the  first  to  which  evidence  was  intro- 
duced, was  the  only  offense  upon  which  the  defendant  could  be 
tried;  and  if  proofs  of  subsequent  acts  were  admissible  at  all,  they 
could  not  be  admitted  as  distinct  offenses  to  go  to  the  jury,  and 
upon  which  the  defendant  might  be  convicted.  It  was  not  neces- 
sary for  the  ])rosecution  to  e.\p»  essly  elect  for  which  act  they 
would  try  the  defendant  in  order  to  bind  them.  The  fact  of  their 
introducing  evidence  tending  to  prove  a  distinct  substantive 
offense,  was  a  sufficient  election.  In  this  case  under  the  charge 
as  given,  there  was  no  certainty  whatever  that  the  jurors  all 
united  upon  the  same  act  in  finding  the  defendant  guilty. 

Nor  could  the  prosecution,  after  having  thus  introduced  evi- 
dence tending  to  show  an  offense  committed  in  the  town  of  Pen- 
field,  ou  the  28th  of  July,  show  subsequent  acts  as  corroborating 


**^  ■■  '*il#HMit«' 


^^p 


PEOPLE  V.  CLARK. 


663 


testimony,  as  they  could  have  no  such  tendency.  Proof  of  pre- 
vious acts  of  sexual  intercourse  would  tend  to  show  a  much 
greater  probability  of  the  commission  of  a  similar  act  charged  to 
have  occurred  subsequent  thereto,  but  the  converse  oi  this  propo- 
sition would  not  be  true,  as  the  proof  of  a  crime  committed 
by  parties  on  a  certain  day  could  have  no  tendency  to  prove  that 
they  had,  previous  thereto,  committed  a  similar  offense.  Peo- 
ple V.  Jenness,  svpra;  Tem^pleton  v.  The  People,  27  Mich., 
501;  T/ie  People  v.  Schmeitzer,  23  Mich.,  304. 

There  is  still  another  serious  objection  to  the  prosecution  re- 
lying upon  the  second  or  third  act  proven  in  this  case  for  a  con- 
viction. It  appeared  from  the  testimony  of  the  complaining 
witness  that  the  first  offense  was  committed,  if  at  all,  on  the 
28ih  of  July,  1873;  that  the  second  and  third  offenses  were  com- 
mitted, if  at  all,  during  the  month  of  August  following,  but  at 
what  particular  time,  she  was  unable  to  state.  And  upon  cross- 
examination  she  gave  testimony  tending  to  prove  several  distinct 
acts  of  intercourse,  in  all  instances  connected  with  a  promise  of 
marriage,  in  the  months  of  July  and  August,  and  all  subsequent 
to  the  28th  of  July. 

Illicit  intercourse  alone  would  not  constitute  the  offense 
charged.  In  addition  to  this  the  complainant,  relying  upon 
some  sufficient  promise  or  inducement,  and  without  which  she 
would  not  have  yielded,  must  have  been  drawn  aside  from  the 
path  of  Virtue  she  was  honestly  pursuing  at  the  time  the 
offense  charged  was  committed.  Now,  from  her  own  testimony 
it  would  seem  that  the  parties  had  illicit  intercourse  as  opportu- 
nity oftered.  "  Such  is  the  force  and  ungovernable  nature  of 
this  passion,  and  so  likely  is  its  indulgence  to  be  continued  be- 
tween the  same  parties,  when  once  yielded  to,  that  the  constitu- 
tion of  the  human  mind  must  be  entirely  changed  before  any 
man's  judgment  can  resist  the  conclusion,"  that  where  parties 
tluis  indulge  their  criminal  desires,  it  shows  a  willingness  upon 
her  part  that  a  person  of  chaste  character  would  not  be  guilty 
of,  and  that  although  a  promise  of  marriage  may  have  been  made 
at  each  time  as  an  inducement,  it  would  be  but  a  mere  matter  of 
form,  and  could  not  alone  safely  be  relied  upon  to  establish  the 
fact  that  she  would  not  have  yielded,  had  such  a  promise  not  been 
made. 

We  do  not  wish  to  be  understood  as  saying  that,  even  as  bo  • 


COi 


AMERICAN  CRIMINAL  REPORTS. 


1  '' 
'1 


tween  the  same  parties,  there  conlcl  not  be  a  second  or  even  third 
act  of  seduction;  but  where  the  subsequent  alleged  acts  follow 
the  first  so  closely,  they  destroy  the  presumption  of  chastity 
wliich  would  otherwise  prevail,  and  there  should  be  clear  and 
satisfactory  proof  that  the  complainant  had  in  truth  and  fact  re- 
formed, otlicrwise  there  could  be  no  seduction.  The  object  of 
this  statute  was  not  to  punish  illicit  cohabitation.  Its  object 
was  to  ])unish  tlie  seducer,  who,  by  his  arts  and  persuasions,  ]»re- 
vails  over  the  chastity  of  an  unmarried  woman,  and  wlio  thus 
draws  her  aside  from  the  path  of  duty  and  rectitude  she  was  pur- 
suing. If,  however,  she  had  already  fallen,  and  was  not  at  the 
time  pursuing  this  path,  but  willingly  submitted  to  his  embraces 
as  opportunity  oflered,  the  mere  fact  of  a  promise  made  at  the 
time  would  not  make  the  act  seduction. 

Nor  will  illicit  intercourse  which  takes  place  in  consequence 
of,  and  in  reliance  upon  a  promise  made,  make  the  act  seduction. 
If  this  were  so,  then  the  common  prostitute,  wlio  is  willing  to 
sell  her  person  to  any  man,  might  afterwards  make  the  act  se- 
duction, by  proving  that  she  yielded  relying  upon  the  promise 
of  compensation  made  her  by  the  man,  and  without  which  she 
wouid  not  have  submitted  to  his  embraces.  Illicit  intercourse, 
in  reliance  upon  a  promise  made,  is  not  sufficient,  therefore,  to 
make  the  act  seduction.  The  nature  of  the  promise,  and  the 
previous  character  of  the  woman  as  to  chastity,  must  be  consid- 
ered. And  although  the  female  may  have  previously  left  the 
path  of  virtue  on  account  of  the  seductive  arts  and  persuasions 
of  the  accused  or  some  other  ])erson,  yet  if  she  has  re])ented  of 
that  act  and  reformed,  she  may  again  l>c  seduced.  \Ve  do  not 
say  tluit  there  nriy  not  have  been  a  rcfornuition  in  this  case;  in- 
deec'  there  may  have  been  many,  but  they  were  unfortunately 
fleeting.  Had  a  reasonable  time  elapsed  l)etween  the  difterent 
acts,  a  presumption  in  favor  of  a  reformation  might  arise,  but 
we  think  no  such  presumption  could  arise  in  this  case,  and  that 
the  burden  of  proving  such  would  be  ujion  the  prosecution. 

In  this  connection  we  may  discuss  another  question  raised. 
Upon  cross-examination  of  the  complaining  witness,  she  was  asked 
whether  previous  to  this  time  she  had  ever  liad  connection  with 
any  other  man.  This  was  objected  to  as  irrelevant,  and  the  ob- 
jection was  sustained.  It  does  not  clearly  appear  from  the  rec- 
ord what  particular  time  the  question  referred  to,  whether  to  a 


PEOPLE  r.  CLARK. 


6C5 


i     :!i 


time  previous  to  the  first  allegeJ  act  of  intercourse  with  the  clo- 
fendant,  or  previous  to  the  trial.  If  the  latter,  the  ruling  was 
clearly  correct.  People  v.  Brcioer,  27  Mich.,  1B4.  If  the  former, 
then  we  think  the  question,  under  the  objection  made,  was 
proper.  In  the  examination  of  this  question,  and  also  of  the  one 
last  discussed,  we  have  derived  but  little  benefit  from  an  exam- 
ination of  the  authorities.  Seduction  was  not  punishable  by  in- 
dictment at  common  law,  and  the  cases  which  discuss  these  ques- 
tions are  all  under  statutes  which  differ  in  some  respects  from  oui's. 

In  most  of  the  states  their  statute  makes  the  seduction  of  a 
woman  of  "  previous  chaste  character "  an  indictable  ofrense, 
while  there  are  no  such  words,  nor  any  of  like  import,  in  ours; 
and  the  courts  have  held  that  the  words  "  previous  chaste  char- 
acter" mean  that  she  shall  possess  actual  personal  virtue,  in 
distinction  to  a  good  reputation,  and  that  a  single  act  of  illicit 
connection  may  therefore  be  shown  on  behalf  of  the  defendant. 
If,  however,  we  are  correct  in  what  we  have  already  said  upon 
the  question  as  to  what  is  necessary  to  make  an  act  of  illicit  in- 
tercourse seduction,  then  the  phastity  of  the  female  at  the  time 
of  the  alleged  act  is  in  all  cases  involved,  and  the  ])resnmption 
of  law  bein<j  in  favor  of  chastity,  the  defense  have  a  right  to 
show  the  contrary.  This  upon  principle  we  consider  the  correct 
doctrine,  and  that  it  necessarily  follows  from  what  we  have  said 
upon  the  other  question.  As  bearing  upon  these  questions,  we 
refer  to  Carjienter  v.  The  Peoph,  8  Barb,,  003;  State  v.  Shean, 
82  Iowa,  88;  Kenyan  v.  The  People,  26  N.  Y.,  203;  State  v. 
Carroll,  18  Iowa,  372;  Andre  v.  The  State,  5  id.,  359;  B(xck  v. 
The  State,  id.,  430;  Cook  v.  The  Peojde,  2  Thompson's  C.  (X. 
Y.),  404;  Crozkr  v.  The  People,  1  Harris  C.  C,  453;  Safford 
V.  The  People,  id.,  474;  State  v.  Sutherland,  30  Iowa,  570. 

The  defense  offered  to  prove  that  during  the  examination  of  the 
defendant  for  this  offense,  the  complainant  was  present  but  was 
not  examined.  This  was  excluded,  and  we  think  rightly.  The 
complaining  witness,  of  her  own  motion,  could  not  take  the  stand  as 
a  witness  upon  that  examination.  The  prosecuting  attorney  need 
not  necessarily  be  present,  but  even  if  he  were,  we  think  at  that 
stage  of  the  proceedings,  he  must  have  some  discretion  given  him 
as  to  what  witnesses  he  should  call,  and  this  omission  to  call  any 
particular  witness  cannot  be  made  a  subject  of  criticism  upon  the 
trial  in  the  circuit. 


666 


AMERICAN  CRIMINAL  REPORTS. 


i 


The  defense  also  oflTered  certain  evidence  tending  to  show  a 
plan  between  the  complainant,  her  father  and  mother,  to  inveigle 
the  defendant  into  a  marriage  with  the  complainant,  and  falling', 
to  prosecute  him.  This  was  their  theory  of  the  case,  and  for  this 
purpose  the  evidence  was  admissible.  This  is  an  offense  where 
it  is  very  difficult  for  the  defense  to  present  any  direct  evidence 
to  disprove  the  charge,  as  third  parties  are  not  usually  called  iu 
to  witness  such  transactions,  although  in  this  case,  it  does  appear 
that  complainant's  mother  did  find  them  in  bed  together  on  one 
occasion.  She,  however,  whether  discreetly  or  not,  kept  silent 
and  did  not  communicate  that  fact  to  her  hug  tand  or  any  one  for 
nearly  a  year  thereafter.  We  think  the  faces  offered  by  the  de- 
fense tended  to  support  their  theory,  and  they  had  a  right  to 
have  them  presented  to  and  considered  by  the  jury,  as  bcariiii^ 
upon  the  question  whether  the  offense  charged  had  been  coiu- 
niitted  or  not. 

Medical  witnesses  were  called  to  testify,  th.at  in  their  opinion 
intercourse,  under  the  circumstances  described  by  the  complain- 
ant,^ was  highly  improbable,  if  not  impossible,  atid  also  to  the 
pain  and  suffering  the  complainant  would  have  experienced  had 
Buch  an  act  taken  place.  As  already  said,  tht-  defense  is  a  dilH- 
cult  one  to  prove,  no  matter  how  innocent  the  accused  may  be, 
more  especially  where  the  parties  have  been  in  each  other's  com- 
pany, and  thus  apparently  an  opjjortunity  has  been  given  to 
commit  such  an  offense.  The  time  the  ])arties  were  together,  the 
particular  place,  and  the  probabilities  arising  tlierefrom  of  their 
being  caught  in  the  act,  their  position  and  their  opportunities 
M'liile  together,  all  or  any  of  these  may  render  it  highly  improb- 
able, if  not  impossible,  that  such  an  offense  was  really  committed. 
And  although  counsel  iu  their  argument  might  draw  the  same 
conclusion  as  a  medical  expert  would  from  the  facts  ])roven,  yet 
they  are  not  bound  to  rely  upon  this,  but  may  call  competent 
parties  to  testify  upon  that  subject. 

To  establish  the  fact  that  the  prosecution  was  commenced 
within  one  year,  the  warrant  issued  by  the  magistrate  was  offered 
in  evidence,  but  objected  to,  first,  because  it  did  not  appear  in  evi- 
dence that  the  complaint  referred  to  therein  was  in  writing;  and 
second,  that  the  warrant  itself  would  not  be  evidence  of  the 
commencement,  but  would  only  be  evidence  when  coupled  with 

'  Iu  a  buggy. 


PEOPLE  V.  CLARK. 


667 


the  exauiination  and  return  of  the  magistrate.  The  evidence 
and  return  of  the  magistrate  was  afterwards  offered  in  evidence, 
which  disposed  of  the  second  objection.  And  as  to  the  first,  the 
statute  docs  not  require  a  complaint  in  writing.  The  issuing  of 
tiie  warrant  in  good  faith,  and  delivery  to  an  officer  to  execute,  is 
a  sufficient  commencement,  if  it  appears  that  the  defendant  was 
afterwards  arrested  upon  that  wan-ant  and  bound  over  for  trial. 

A  question  was  raised  that  as  but  one  offense  was  charged  in 
the  warrant,  no  other  offense  could  be  set  forth  in  the  informa- 
tion. The  defendant,  by  pleading  to  the  information,  waived 
any  such  question  that  he  might  have  raised  thereto. 

Questions  were  also  raised  as  to  the  charge  of  the  court  relative 
to  the  effect  of  good  moral  character,  and  some  others  which  are 
not  likely  to  arise  again,  under  previous  decisions  of  this  court, 
which  seem  to  have  been  overlooked,  and  we  do  not  consider  it 
necessary,  therefore,  to  discuss  them. 

The  conviction  should  be  set  aside,  and  a  new  trial  granted, 
and  directions  given  to  the  court  below  accordingly. 

The  other  justices  concurred. 

XoTK.  —  la  Wood  V.  State,  48  Ga.,  192,  which  was  an  mdictraent  for  seduc- 
tion, the  eviili'iKe  for  tlie  prosecution  tended  to  establish  this  case.  The  reopond- 
ent  \va.^  ii  toiveher  and  also  a  minister.  He  was  married,  and  his  wife  and  family 
Uved  with  him.  The  girl  seduced  was  alwut  sixteen  yeai-s  of  age,  a  pupil  of  the 
respondent  ajid  a  member  of  tlie  church  of  which  he  was  pastor.  8he  knew  that 
the  respondent  was  married.  Tlie  respondent  gained  her  confidence  and  affec- 
tion, and  then  by  means  of  the  influence  wliich  he  had  acquired  over  her,  and  by 
jK-rsuasions  and  arguments,  managed  to  seduce  her.  Tlio  evidence  is  reported  in 
full  in  the  caae;  and  the  testimony  of  the  seduced  girl  shows  veiy  clearly  the  suc- 
cessive stops  by  which  her  ruin  was  acoomphshed.  Among  other  things,  she 
testified  that  the  resiwndent  told  her  his  wife  was  not  likely  to  live  long,  and 
when  the  wife  died  he  would  many  her  On  the  part  of  the  respondent,  it  was 
urged,  that  on  these  facts,  the  respondent  could  not  be  com-icted  of  seduction;  that 
"  a  man  who  is  known  to  the  female  alleged  to  be  seduced  to  be  a  luanied  man, 
living  and  cohabitmg  with  a  lawful  wife,  cannot  be  guilty  of  the  crime  of  seduc- 
tion." On  this  point,  the  court  use  the  follo^ving  language:  "Tliat  a  married 
man  may  l>e  guilty  of  seducing,  by  false  and  fraudulent  means,  a  woman  who 
knows  he  is  married  is,  we  thuik,  incontestible.  He  may  gain  her  confidence  in 
many  ways.  He  may  be  her  guardian,  her  near  kinsman.  He  may,  as  is 
chai'ged  in  this  case,  be  her  teacher  and  spuitual  adviser;  she  may  honestly  and 
chastely  honor,  confide  m  and  trust  liim.  She  may  look  to  him  as  the  fountain 
of  truth  and  purity,  so  that  his  acts,  his  words  and  his  opinions  shall  be  to  her  as 
those  of  a  God.  Under  such  a  state  of  circumstances,  tJie  girl  is  as  much  a  vic- 
tim as  though  her  confidence  were  the  product  of  that  tender  and  confiding  rela- 


668 


AMERICAN  CRIMINAL  REPORTS. 


tion  existing  between  plijfhted  lovers,  bound  by  pledges  to  be  consumumted  at 
the  altiu-  of  marriage.  Indeed,  as  all  experience  has  proven,  the  influence  which 
a  priest  may  acquire  over  a  devotee  is,  perhaps,  of  all  others  the  most  complete, 
and  whilst  she  may  by  it  be  led  to  a  purer  life  and  to  a  holier  condition,  it  is  pos- 
sible that  siie  may  be  led  by  it  blinilfold  into  sins  of  the  deepest  die." 

The  st.itute  on  which  the  prosecution  was  based  is  in  these  words:  "Any  per- 
son, who  by  per^tiuision  and  promise  of  marriage,  or  Ijy  any  otiier  false  or  fraudu- 
lent means,  shall  seduce  a  virtuous,  unmarried  female,"  etc.  All  statutes  iigiiinst 
seduction,  refer  to  the  seduction  of  virtuous  fenuiles,  indeed,  tliere  could  Ije  no 
seduction  of  an  unchaste  female.  But  precisely  wliat  constitutes  a  virtuous 
(or  chaste)  female  has  been  a  subject  of  diiference.  In  this  case,  the  trial 
judge  instnicted  the  jurj'  as  follows:  "  It  must  appear  from  the  testimony,  tliat 
she  was,  at  the  date  of  the  alleged  seduction,  a  virtuous,  unmarried  female. 
The  test  is  to  be  applied  to  her  at  that  date,  and  not  at  a  subsequent  period. 
The  presumption  of  the  law  is  that  she  was  virtuous,  and  that  presumption  re- 
mains until  removed  l)y  the  proof.  She  must  have  had  personal  chastity.  If 
she,  at  that  time,  had  never  had  unlawful  sexual  intercourse  \vitl;  man ;  if  no 
man  lia<l  then  carnally  known  her,  she  was  a  virtuous  feuuile  within  the  meaning 
of  this  law.  If  man  iiad  then  carnally  known  her,  had  hail  unlawful  sexual  in- 
tcrcom-se  with  her,  she  was  not  a  virtuous  female  within  the  meaiiing  of  this 
law."  This  instruction  was  held  to  be  eiTor.  The  supreme  court  say:  "Virtue 
is  a  thing  of  the  heart  and  mind.  A  woman  who  has  been  guilty  of  fornication 
has  done  an  act  showing  that  she  is  not  of  a  virtuous  heart,  or,  at  least,  thfit  she 
was  not  at  the  time  of  tiie  act.  The  evidence,  it  is  true,  is  very  conclusive,  but 
it  does  not  at  all  follow  that  she  is  a  virtuous  woman  bt?cause  siie  luis  not  broken 
the  law,  no  more  than  it  follows  that  a  man  is  honest  because  he  has  not  violated 
Uie  law  agiunst  steiding. 

To  be  guilty  of  the  crime  of  seduction  is  one  thing,  and  to  induce  a  woman  to 
commit  fornication  is  another.  The  crime  of  seduction  involves  purity  of  heart 
and  a  chaste  mind  in  the  woman  seduced.  She  must  be  led  airaij  from  riiiite. 
The  definition  of  the  judge  would  exclude  a  woman,  who,  yeiu-s  before  had  betn 
guilty  of  fornication,  but  who  had  repented  and  wtis  now  perfectly  Nnrtuous;  per- 
haps the  more  so  thnf  '1:0  had  once  sinned  and  repented  in  sackcloth  and  ashes. 
And  this  definition  of  a  seducible  woman  is,  a.s  I  believe,  contrary  to  the  general 
sense  of  the  word,  as  used  both  in  England  and  America."  Warner,  C.  J.,  dis- 
sented, and  thought  there  was  no  en"or  in  the  instniction  of  the  circuit  judge. 

In  Slate  r.  Timmens,  4  Minn.,  325,  the  following  instruction  was  held  to  bo 
connect:  "  ITiat  if  the  juiy  find  that  the  defendant  had  carnal  intercourse  with 
the  witness  at  the  time  and  place  in  the  indictment  charged,  undt-r  a  promise  to 
marry,  the  jury  may  convict,  although  she  may  have  had  canial  connection  witli 
tlie  defendant  previously,  provided  she  had  reformed  and  was  chaste  at  Uie  time 
of  the  commission  of  the  otfense." 

In  State  v.  Carron,  18  Iowa,  372,  in  which  case  a  number  of  authorities  are  col- 
lected, tlie  same  doctrine  is  laid  down. 

The  principal  case  makes  allusion  to  the  case  of  People  r.  Mllhpmigh,  11 
Mich.,  278,  but  it  must  bo  regarded  as  substantially  overruling  it.  In  that  case 
it  appeared  that  the  parties  first  had  sexual  intercourse  under  circumstances  that 
constituted  the  act  a  seduction  in  July,  1860.  That  such  intercourse  was  renewed 
at  short  intervals  under  renewed  promises  of  marriage  each  time  until  December, 


I 


PEOPLE  r.  CLARK 


Mf^ 


'I 


1861.  That  the  samo  coui-se  of  conduct  was  continued  between  the  paiM  s  until 
Moi'ch,  18(52,  when  the  prosecutrix  became  pregnant.  The  defendant  was 
charged  with  seduction  in  March,  1802,  and  convicted.  The  defense  was,  that,  aa 
tiie  uncontradicted  evidence  showed  that  the  seduction  took  phice  in  July,  1860, 
more  than  one  year  before  the  time  laid  in  the  infonuation,  tlie  oifense  was 
barred  by  the  statute  of  limitation,  which,  in  Michigan,  requires  a  prosecution  to 
be  Ijcgun  witliin  one  year  after  tlie  commission  of  tlie  ottense.  The  court  held 
that  there  Wivs  no  error  in  submitting  the  case  to  the  jury  under  this  charge: 
"that  if  the  jury  believe  that  the  prisoner  had  sexual  intercourse  with  said  Mary 
Taylor  on  March  3,  1SG2,  *  *  *  under  and  in  consequence  of  a  renewed 
promise  of  nuuriage,  then  at  the  timo  made,  the  oflen.se  was  complete,  and  they 
may  find  the  prisoner  guilty." 

On  a  review  of  the  cases,  the  doctrine  as  to  what  constitutes  a  seduction  may  be 
thus  stated :  The  prosecutrix  must  at  the  time  be  of  chaste  character.  xVlthoagh 
fche  may  have  previously  fallen,  if  she  is  then  honestly  pui-suing  the  path  of  vir- 
tue and  is  of  pure  mind  and  heart,  this  constitutes  chaste  chariicter,  while  sho 
may  be  unchaste,  without  ever  having  been  guilty  of  illicit  sexual  intorcourso. 
The  prisoner  nmst  have  had  illicit  intercourse  with  her,  seduction  ex  vi  termini 
rinplyiiig  sexual  intercourse  (State  r.  Bierce,  27  Conn.,  ol9),  luid  such  illicit  intcr- 
coui-se  must  have  been  obtained  Ijy  means  of  a  control  over  the  luind,  will  or  af- 
fections of  the  prosecutrix  obtained  by  tlie  seducer,  and,  after  obtauiing  such 
control,  by  persuasions,  arguments  or  inducements  held  out.  Many  of  the  states, 
as  ill  New  York,  require  the  seduction  to  be  under  a  promise  of  man'iage.  Of 
coui-se  under  such  a  statute  no  conviction  could  lie  had  for  seduction  where  the 
prosccntiix  knew  that  the  defendant  was  mairied  at  the  time  of  the  promise, 
aJid  this  was  so  decided  in  People  r.  Ahjer,  1  Park.  Crim.  Rep  ,  ;):3:J.  But  where 
the  statute,  as  in  Michigan,  simply  provides  that  "whoever  shall  seduce  and  de- 
bauch'any  unmarrietl  woman,  shall  be  puninhed,  etc.,"  no  promise  of  maiTiage  is 
necessity.  It  is  sutticient  that  the  respondent  by  his  arts  having  obtained  a 
control  over  the  mind,  will  or  affection  of  the  prosecutrix,  uses  his  power  to  lead 
lier  away  from  the  path  of  virtue  which  she  is  at  the  time  honestly  pursuing. 
Besides  the  cases  already  cited,  see  also  Aiuhx  r.  State,  5  Iowa,  389;  Book  r. 
State,  id.,4:J0;  Ctir/wnter  r.  I'eoj)le,S  Barb.,  (50:5;  Com.  v.  McCuiiij,  4  Penn.  Law 
Jour.,  ViG;  2  Whart.  Am.  Crim.  Law,  55§  2672  ajid  2673,  and  cases  there  cited. 

The  supreme  court  of  Wisconsin  in  Cmghan  i:  St<ite,  22  Wis.,  444,  which  was 
a  prosecution  for  seduction,  in  defining  the  ilirterence  ijetween  seduction  and  rape, 
ase  tliis  language:  "  But  the  word  '  seduction,'  when  applied  to  tlie  conduct  of 
a  man  towards  a  female,  is  geni-rally  understood  to  ni'jan  the  use  of  some  in- 
fluence, promise,  arts,  or  means  on  his  part,  by  which  he  induces  the  woman  to 
snnvnder  her  chasity  and  virtue  to  his  embraces.  But  we  do  not  suppose  that  it 
must  appear  that  any  distinct  promise  was  made  to  the  female,  or  any  subtle  art  or 
device  employed.  It  is  sutticient  that  the  means  used  do  accomplish  the  seduc- 
tion, and  induce  the  female  to  consent  to  the  sexual  intercourse.  Perhaps  the 
motive  of  fear  on  the  mind  of  the  female  is  not  to  be  excluded  —  not  the  fear  of 
pei-sonal  violence  and  iiy'uiy  unless  she  consent  to  the  connection,  but  a  fear  that 
the  man  may  in  some  way  injure  her  reputation  or  standing  in  society,  unless  she 
yields  to  his  importunities.  But  the  woman  must  be  tempted,  allured,  and  led 
astray,  from  the  path  of  virtue,  through  the  influence  of  some  means  or  per- 
suasion emploj-ed  by  the  man,  until  she  fx-eely  consents  to  the  sexual  intercourse." 


ii 

:; 

ii!   ! 


nw 


INDEX. 


ABDUCTION  UNDER  MISTAKE  OF  FACT. 

The  prisoner  was  convicted  under  24  and  25  Vic,  ch.  100,  sec.  55,  of  unlaw- 
fully taking  an  unmarried  female  under  the  ape  of  sixteen  years  out  of  the 
possession  and  against  the  will  of  her  father.  It  was  proved  that  the  pris- 
oner did  take  the  girl,  and  that  she  was  under  sixteen,  but  that  he  bonajide 
believed,  and  had  reasonable  ground  for  believing,  that  she  was  over  six- 
teen: Held,  by  Cockburn,  C.  J.,  Kelly,  C.  B.,  Bramwell,  Cleasby,  Pollock, 
and  Amnhlett,  BB.,  Blackburn,  Mellor,  Lush,  Grove,  Quain,  Denman, 
Archibald,  Field  and  Lindley,  JJ.,  Brett,  J., dissenting,  that  the  latter  fact 
afforded  no  defense,  and  that  the  prisoner  was  rightly  convicted.  Beg,  v. 
Prince,  1 


ABDUCTION  FOR  PROSTITUTION. 

1.  Tlie  indictment  charged  the  abduction  of  "  a  female,  etc.,  for  the  purpose  of 

having  illicit  sexual  intercourse  with  her."  The  statute  is  against  abduc- 
tion "for  the  purpose  of  prostitution."  Held,  that  the  indictment  charged 
no  ollense  under  the  statute,  and  shoidd  have  been  quashed.  Oshorn  v, 
atate,  25 

2.  Prostltidion  — Illicit  intercourse. 

Prostitution  means  common,  indiscriminate  illicit  sexual  intercourse,  and  not 
illicit  sexual  intercourse  with  one  man  only,  Ibid, 

3.  Chaste  character. 

A  statute  against  the  abduction  of  females  of  "previous  chaste  character" 
means,  actual  personal  vurtue  in  distinction  from  a  good  reputation.  Lu- 
0118  V.  State.  28 

4.  Evidence, 

On  the  trial  of  an  indictment  founded  on  a  statute  against  the  abduction  for 
prostitution  of  females  of  previous  chaste  character,  it  is  admissible  to  prove 
previous  particular  acts  of  illicit  intercourse  on  the  part  of  the  female 
abducted.  Ibid. 


I    ! 


ABORTION. 

1.  Statute  construed  —  Intent. 

The  respondent  was  convicted  on  an  indictment  charging  him  with  feloniously 
beating  and  striking  a  pregnant  woman  with  intent  to  cause  her  to  iniscar- 
rj'.  The  statute  under  which  the  indictment  was  found  is  as  follows: 
"  Whoever,  by  means  of  any  instrument,  medicine,  drug,  or  other  means 


•ii 


m 


m 


INDEX. 


means  wluvti'vcr,  ciiustm  miv  wonjiiii  im'>n>iuit  with  cliilil  to  abort  or  mis- 
miry."  I't*;. :     It  ^-m  hrlil,  tmit  tlio  Htaluti)  only  iv|)i)lio((  to  thoHo  who  inti'iul 


to  produce  an  ulx>rtio».    UlaUcry  v.  I'coph, 

2.  Evidence. 
Tho  evidoiico  in  this  coho  was  held  iiisufRcioiit  to  justify  a  connction. 


Ibiit. 


ACCOMrLICK. 

1.  One  who  nun'hnAos  stolen  jyoods  from  a  thief,  wth  money  furnished  hy  an  nfH- 

cer,  witli  a  view  of  bringintf  the  tliief  to  justice,  is  not  an  accomplice. 
reoph  »'.  JJairic,  ,  178 

2.  Cort'oboi'otlon  of  accomi>llcc. 

On  a  trial  for  felony,  a  conviction  cnnnot  he  had  on  the  fe'stimonyof  an  accom- 
plice, unless  such  testimony  is  corroborated,  and  tho  corrolsjiution  must  lie 
as  to  some  tact  or  circumstance  tending  to  connect  the  res[s)ndent  with  tlie 
Clime.  It  is  not  sutficient  that  the  evidence  of  the  aec'omplire  is  corroli- 
onited  by  fact«  which  tend  to  show  the  commission  of  the  crime,  luid  that 
tho  iiccomplicc  was  concerned  in  it.    MiddhtuH  r.  SUttv,  l'J4 

3.  Same, 

What  credit  is  to  be  «iven  to  the  testimony  of  an  accomplice,  whether  coiToh- 
oniti'd  or  uncorroljonited  is  a  matter  exclusively  witlmi  the  province  of  tii.! 
jury.    Hamilton  i\  I'eopJe  (and  see  note,  p.  tiUO),  Cl^ 

4.  Wairer  of  pririle<je. 

Where  an  accomplice  volunteer  to  testify  in  a  criminal  case,  he  must  testify 
fully  and  may  lie  compelled  to  testify  as  to  statements  made  by  him  to  lin 
counsel  witii  regard  to  the  ca.-e,  and  it  .svemn  that  tlie  counsel  may  also  lie 
compelled  to  testify  as  to  such  statements.  Ibid, 


ADMISSIONS  AND  CONFESSIONS. 

1.  Confessions. 

The  person  with  whom  a  prisoner  had  been  livini;  for  two  years  said  to  him, 
"Tom,  this  is  mit^hty  I'ad;  they  have  (ioi  the  dead  W(K)d  on  you  and  ymi 
will  be  convict^^d,  'and  at  the  same  time  said  somethinj,'  alxnit  "  cwnini,' 
up."  The  prosecutor  said  to  the  prisoner,  "  You  are  very  younjjr  to  be  in 
such  a  ditticulty  iu<  this;  there  must  have  been  some  one  with  you  who  is 
older,  and  I,  if  in  your  place,  would  tell  who  it  is;  it  is  not  ri^rht  for  you  to 
sutl'er  the  whole  penalty  and  let  some  one  who  is  ffuiltier  jfo  free;  it  may  jro 
liyliter  with  you.  '  Jleld,  that  contVssious  mmle  under  the  influence  extrttd 
by  this  lun(;uap>  could  not  bo  regarded  U8  voluntary,  and  ore  inudiuissilile. 
ifeicman  v.  State,  173 

2.  Same. 

Where  an  officer  promiw^d  respondent,  apirlof  fourteen,  that  if  she  would  tell, 
she  sliouhl  not  lie  hurt,  ana  she  thereuix)n  confessed  her  gviilt,  it  wiw  hrld 
that  her  confession  was  inadmissible,  a»  not  huvinj,'  been  mmle  voluntarily 
Earp  V.  State,  171 

8.  Same. 

Where  a  confession  wliieh  is  inadmissible,  because  not  voluntarily  made,  is  ad- 
mitted without  olijection,  it  is  nevertheless  the  duty  of  the  court  to  exclude 
the  confession  from  the  consideration  of  the  jury  by  his  char(^',  if  so  re- 
quested. Jbid 

4.  Same. 
Where  a  prose,  uiing  witness,  who  testifies  to  confessions  matie  in  the  presence 


iil)ort  or  uw' 
>HL>  who  inti'iiil 


ion. 


Ibid. 


lied  liy  an  offi. 

n  ucc'oiuiilict'. 

ITS 


y  of  an  ivciDni- 

ution  must  Ih) 

ili'ht  with  till! 

pHcf  in  cfiiToli- 

rime,  luul  thiit 

l'J4 


hctlior  rorrol). 
)rovince  of  tli.) 


must  tt'stifj' 

liy  hill)  to  Ins 

L'l  may  also  lio 

Jbid. 


ITS  saul  to  him, 
I  you  aiul  you 

llKUlt  "cWllilli,' 

yoinifjf  to  1)1'  in 
^ith  you  who  is 
in^fht  for  you  to 
Freoj  it  may  p) 
fluenw;  oxtittd 
u  iniuhui-ssililc. 

I7;i 


she  would  tt'll, 
ilt,  it  was  l>rl(l 
tie  voluntariiv 
Itl 


ly  nmilo,  is  ad- 

•urt  to  cxchule 

har^^e,  if  so  ro- 

Ibid 


n  the  preaonca 


w 


INDEX. 


era 


of  hiniHoIf  and  the  sheriff,  teHtifioH  in  n  preliminary  croHS-examinaUon  that 
it  iH  poHHihle  that  something  wiu  wiid  about  itt^  Itein)^  In'tt^T  tor  the  priu- 
onerlo  make  u  full  dJHcloHure,  it  waM  hvld,  tliut  the  confebaioutf  were  iuuiUuiH- 
Hible.    I'eopUt  v.  liamc,  178 

5.  Same. 

Before  confrsHionB  nunle  to  one  in  authority  can  be  recoivod  in  evidence,  it  nuiht 
appear  attirmatively  that  they  were  nuulo  voluntarily.  Ibid. 

6.  Evidence  obtained  from  defendant  by  force. 

A  prisoner,  arrested  for  larceny  of  Krowinjf  com,  was  compelled  by  the  officer 
who  arrt'sted  him  to  uut  lu«  foot  into  a  fresh  track  in  the  fiehl  where  the 
corn  wiw  ifrowinj?.  It  was  held  proper  for  the  officer  to  t^'stify  as  to  the 
corresiKjiuft'nce  between  the  nrisoner's  foot  and  the  track,  and  that  the  evi- 
dence should  not  be  excluiled,  because  obtuineil  througli  fear  or  force.  State 
V.  Graham,  18'J 

7.  Confessions  obtained  throuifh  fear  or  hojie  arc  inadmissible,  because  the  fear  or 

hope  may  so  influence  the  wrisouer's  mind  iw  to  induce  him  to  make  false 
statements.  Hut  if  uidepeniient  facts  or  circumstances  are  k-arneil  through 
fear,  force  or  hope,  evidence  of  the  facts  or  circumstances  is  admissible,  be- 
cause the  fear  or  hope  oi)eratiny  on  the  prisoner's  mind  cim  have  no  tendency 
to  distort  them.  Ibid. 

8.  Same. 

On  a  trial  for  murder,  the  prosecution  put  on  the  stand  a  convict  who  had  been 
confined  in  prison  with  the  resisindent.  The  convict  testified  that  respond- 
ent hwl  t4)l(t  him  that  he  hiul  kiUi'd  a  nuvn  whom  his  conversation  identified 
as  the  murdcrrd  man,  and  that  retipondent  was  afraid  he  would  be  tried  for 
it  when  he  jjot  out.  Held,  that  a  charge  which  rt'feiTed  to  tliis  evidence  as 
t«Midinj,'  to  show  a  voluntary  confession  without  inducement  waa  not  eiTO- 
neous.     MeViilloch  v.  State,  317 

9.  Silence  as  an  admission. 

Silence  under  accusations  is  not  ttlwajT)  to  Iw  considered  as  an  admission  of  their 
truth.  And  so,  where  the  resiMJndent  had  promised  to  be  on  his  good  be- 
havior at  a  family  interview  to  which  he  hail  induced  ic  friend  by  means  of 
such  promise  to  accompany  him.  it  was  held,  that  his  sileuc  at  that  inter- 
view under  harsh  accusations  should  not  be  constmed  as  an  admission  of 
their  truth.    Slatten/  v.  Veojile  (and  sec  note,  page  c)2),  ^ 

10.  Adtniii.'iions,  rij/ht  to  whole  conversation. 

Where  the  prosecution  have  proved  declarations  of  the  respondent  relative  to 
the  homicitle  by  a  witness  who  states  that  he  did  not  hem*  all  that  respond- 
ent said  at  the  time,  the  resjwndent  ha.s  a  right  to  prove  by  other  witnesses 
wl'.o  were  present  all  that  he  said  at  the  time  tending  to  exonerate  him.self. 
Cojfman  v.  Commonwealth,  293 

11.  Same. 

On  a  trial  for  murder,  where  tlie  prosecution  have  proved  statements  made  by 
tlie  respondent  immediaK'ly  aft«'r  the  killing,  tending  to  shov/  that  he  killed 
tlie  deci'ased,  the  resjwndent  has  a  right  to  nave  the  whole  conversation,  in- 
cludmg  the  I'xplanation  that  he  then  made  of  the  fact.    Burns  v.  State,  323 

12.  Extra-judicial  statements  bif  respondent. 

On  a  trial  for  felony,  any  statements  which  have  been  made  by  the  respondent 
iw  to  any  fiut  circumstantially  material  to  the  issue  are  adinLssible  against 
liim.  Accordingly,  where  it  wius  materiiU  to  show  that  respondent  had  rid- 
den very  fiust,  it  wius  held  competent  t^i  prove  liis  previous  statements  as  to 
the  speed  of  his  horse.    Eraser  v.  State,  315 

13.  Eight  to  whole  conversation, 

A  witness  called  to  prove  confeseions  made  by  the  rcBpondent  in  a  certain  cou- 
VoL.  I. -43 


111'- 


eu 


INDEX. 


versation,  who  testifies  that  "  he  could  not  remember  nil  the  convei-sntion 
that  took  phvce;  a  srront  many  things  were  said  in  the  convei-sation  that  he 
did  not  remember,  '  will  not  be  allowed  to  testify  to  what  he  does  remein- 
ber.     Beny  v.  Commonwealth,  272 

14.  A  confession  cannot  bo  proved  by  a  witness  who  does  not  remember  the  sub- 

stance of  all  that  was  said  in  the  same  conversation.  Ihid. 

15.  Weight  of  admissions. 

Confessions  deliberately  made,  and  precisely  identified,  are  oftt^n  most  satirfac- 
tory  evidence;  but  more  verbal  admissions,  unsupjwrted  ">y  other  evidence, 
should  be  cautiously  wei^rhed,  because  of  their  liability  to  be  misunderstood, 
the  faciUty  of  fabricating  them,  and  the  difficulty  of  disproving  them,  burns 
V.  State,  32:i 


4  t    *   ' 


■   ^ 


i 

i 


ADULTERY. 


1.  Proof  of  marriage. 
Under  an  indictment  charginp  the  t 


•spondent,  a  married  man,  with  adulter- 


ous and  liuscivious  cohabitation  with  a  shigle  womiui,  the  prosecution  ott'erc 
evidence  tendinff  to  prove  the  marriage  of  the  respondent  m  18(50.  To  avoid 
this  mamafre.  the  respondent  testified  in  his  own  behalf  that  he  had  b(?en 
manned  in  I'^tU,  to  a  woman  who  was  still  living,  and  from  whom  he  had 
never  been  divorced :  Held,  tliat  it  wa.s  sufficient  to  niaintain  the  ollegii- 
tion  of  the  indictment,  if  the  jury  found  either  of  these  marrisvges  to  be  a 
legal,  subsisting  marria^'e  at  the  tinie  of  the  cohabitation,  an<i  tliai  the  evi- 
dence iVi  to  both  was  proi)erly  submitted  to  the  jury.    State  t.  Clark,         34 

2.  Proof  of  marriage  in  criminal  cases. 

Evidence?  of  a  mnrriago  in  fact  iu  a  fonngn  jurisdiction  is  prima  facie  evidence 
of  a  valid  maniage,  and  it  is  not  necessary  to  prove  the  foreign  law.    Ibid. 

3.  Indictment. 

Where  an  iixlictment  charjring  the  respondent,  a  married  man,  with  adulterous 
and  lascivious  cohabitation  with  J.,  dot^s  not  allege  in  express  terms  that .). 
is  not  liis  wife,  but  does  allege  that  .1.  is  a  single  woman,  it  sufficiently  iip- 
pears  on  a  motion  in  arrest  of  judgment,  that  J.  is  not  respondent's  wife, 
and  juilgment  will  not  be  arrested.  Ibid. 

4.  Eridence  of  good  frith. 

On  the  trial  of  an  indictment  for  adultery,  the  responclents  off(>red  to  prove  that 
they  acted  in  good  fiuth  under  the  iuUice  of  a  justice  of  the  peixe,  and  hon- 
estly thouglit  they  wiTO  coiumitting  no  otlensc.    //(•/(/,  that  the  evidence 


was  proiierly  excluded.    State  r.  Goodcnow, 


42 


ALTBI. 

A  charge  that  "e\ndence  of  an  alibi  is  evidence  of  a  suspicious  character,"  ii 
error.    Line  v.  State,  615 


ALIEN  GRAND  JUROR. 
See  GnAND  Jckt. 


•s. 


llMiitaM 


ALTERNATIVE  ERROR. 
See  EiiRon. 


ISV  ! 


INDEX. 


676 


AMENDMENT. 

Tlie  prisoner  was  indicted  for  stealing  nineteen  shillinge  and  sixpence.  He  was 
proved  to  have  stolen  a  sovereign :  Held,  that  by  14  and  15  Vic,  ch.  100,  sec. 
1,  the  court  at  the  trial  had  power  to  amend  tliu  indictment,  if  necessoiy,  by 
substituting  the  word  "  money  "  for  the  words  "  nineteen  and  sixpence,  ' 
and  that  by  sec.  18,  the  indictment  so  amended  was  proved.  Queen  v.  Gum- 
bk,  396 

ARRAIGNMENT  AND  PLEA. 

1.  It  must  affinnatively  appear  on  the  record  that  the  respondent  was  arraigned 

and  pleaded  to  the  indictment.    Ayleswmih  v.  People,  604 

2.  Record. 

It  must  affirmatively  appear  by  the  record  of  a  criminal  case  that  there  htia 
been  an  aiTiiignment  and  plea,  or  tJae  verdict  will  be  set  aside  by  writ  of 
error.    Grigg  v.  People,  602 

3.  On  the  trial  of  an  appealed  criminal  case,  where  the  defendant  was  arraigned 

and  pleaded  before  the  justice,  it  is  not  necessary  that  there  should  be  a  new 
arraignment  and  ploa  in  the  appellate  court.    Eiscnmcm  v.  State,  605 

4.  Record. 

Where  it  does  not  affirmatively  apnear  from  the  record  that  defendant  was  ar- 
raigned and  pleaded  before  trial,  a  conviction  will  be  reversed  on  error,  and 
tliis  rule  applies  to  c;ises  of  assault  and  battery.    Davis  v.  State,  606 

5.  Siipplipuff  pUa  after  vonl'.ct. 

Ai't<'r  verdict  the  court  has  no  iwwer  to  have  a  plea  entered  nunc  pro  tunc  for 
tlie  defendant  without  his  consent.  Ihkl. 

6.  Where  there  was  no    arraignment  and  plea,  but  the  respondent,  being 

present,  announcedhimself  ready  for  trial,  and  went  to  trial,  without  olvjec- 
tion,  the  omission  of  the  arraignment  and  plea  will  not  avail  the  respondent 
on  a  motion  tor  a  new  tiial  or  in  arrest  of  judgment.    State  v.  L'nsmdif, 

667 

ARREST. 

A  peace  officer  may  lawfully  nrrest,  without  a  wan-ant,  one  whom  he  has  reas- 
onable cause  to  suspect  of  a  f.'lony,  and  it  is  not  necessary  for  hLs  justifica- 
tion to  estabUsh  the  guilt  of  the  suspected  person.    Dmhring  v.  State,        60 

See  Homicide. 


ARSON. 
See  BuuNiNG. 

ASSAULT. 

1.  Pointing  unloaded  weapon. 

On  an  inclictment  for  an  assault  and  battery,  where  the  evidence  showed  that 
tlie  respondent  pointed  an  unloaded  pistol  at  the  prosecutor,  at  the  distance 
of  six  paces,  and  ordered  Ww  prosL'cutor  to  kneel  down,  wliich  he  did  through 
fear,  it  was  held  that  this  did  not  constitute  an  ascAult.    McKay  v.  State,  46 


i; 


676 


INDEX. 


2.  IntetH. 

Under  the  Texas  code,  ix)inting  an  unloaded  weapon,  wtliout  any  actual  int^^nt 
to  do  physical  injuiy,  is  not  an  assault.  In  order  to  constitute  an  assault, 
there  must  be  an  actual  intent  to  do  a  physical  injury.  Ibid. 

3.  Ability  to  injure. 

Where  there  is  no  ability  to  inflict  injury,  and  this  is  known  to  the  respondmit, 
he  CtUinot  entertain  the  intent  to  do  uyiury.  Ibiil. 

4.  Fear. 

Fear  on  the  part  of  the  prosecutor  cannot  constitute  a  threatening  ad  an  as- 
sault, when  there  is  no  inti.nit  or  ability  to  do  physical  injurj-,  even  thoufrh 
such  fear  is  reasonable  under  the  circumstances.  IbiiL 


ASSAULT  AND  BATTERY. 


1.  On  the  trial  of  .an  indictment  for  .assault  and  batteiy,  the  e\'idence  showed  tliat 

the  prosecutrix  .and  the  respondents  were  members  of  a  society  called  Good 
Samaritans.  The  society  luid  a  cei'emony  of  expulsion  from  the  society. 
The  prosecutrix  becoming  remiss  in  her  (lutie.<»,  the  respondents  proceedtMl 
to  perfonn  the  ceremony  of  expulsion,  wliicli  consistetl  in  suspending  tin? 
prosecutnx  from  the  wall  by  a  cord  fiustened  around  her  wiiist,  the  prosecu- 
trix resisting:  Held,  that  resiiondents  were  guilty  of  iui  ivssault  and  battery. 
Stater.  Williams,  U] 

2.  Jiecaiifion  of  utolen  propetii/. 

On  the  trial  of  an  indictment  for  a^^sault  and  battery,  the  resjwndent  offered  to 
prove  that  the  assault  and  batteiy  was  committed  in  att<'mpting  to  retake  a 
tiorse  which  had  been  stoleii  from  him  a  sliort  tim(>  before,  from  a  pcimoii  in 
whose  po.ssession  he  found  it.  //cW  inadmissible,  and  that  it  would  not  ex- 
cuse, justify,  or  mitigate  the  otl'en.se.  A  man  han  no  right  to  retake  stoliii 
property  by  a  breach  of  the  iK'ace,    llindrix  v.  State,  d7 

8.  Fi(jihtiiiff  bji  mutual  agreement. 

On  .an  indictment  for  as.sault  and  batteiy  when>  the  evidence  wivi  that  the  re- 
spondent an<l  another,  by  mutual  agreement,  went  out  to  figlit  one  another 
m  a  retired  plac^e,  and  did  tiglit  in  the  prest  rice  of  from  fifty  to  one  Inimiiiil 
pei-sons,  and  tliat  both  wen;  l>niised  in  the  fight,  wliich  continui'd  iintii  one 
of  the  parties  declared  himself  satisfied,  it  wwn  held  that  ea<'!i  was  guilty  nf 
an  a.ssault  and  batterj-  on  the  other.     Commonntallh  r.  Collbrnj,  '<',) 

4.  All  fighting  is unlawfid,  and  it  is  of  no  oonserjuence  that  it i.i  by  mutual  nuree- 

ment  and  without  angi-'r  or  malice  on  the  part  of  those  engaged  in  it.     Ihid. 

5.  Former  conrietion. 

On  an  indictment  for  an  assault  and  battery,  the  resixindent  j)leailed  that  lie 
had  been  tried,  convicted  and  fined  for  a  breach  of  the  j>eju'e,  and  that  said 
conviction  was  for  the  identical  facts  charged  in  the  indictiiient.  ( In  api"iJ 
from  an  order  dismissing  the  indietinent,  the  fact.-;  alleged  in  the  plea  beiiiLT 
admitted  to  be  tnie,  it  was  lit  hi,  that  tJie  pl>'a  wa.-*  good,  and  tlie  former 
conviction  a  bar  to  tlie  prosecution  of  the  indietmeiit.  t'omiiwuievulth  r. 
Ilairk'iiifi,  65 

6.  Statute  roust  rued. 

A  statute  which  i)nnishes  the  infiicting  of  wounds  by  shofiting  or  by  cutting, 
tlinisting  or  st^ibbing  with  a  knife,  dirk,  sword  or  other  deadly  weajHin.  diMV 
not  eiubnice  striking  and  woiuiding  with  a  pair  of  blackHinith  tongs,  and  an 
indictment  charging  tlie  latter  was  liild  to  charge  a  simple  assault  imd 
battery  only.  Ibid. 


TT^ 


INDEX. 


677 


ASSAULT  WITH  INTENT  TO  KILL  AND  MURDER. 

1.  Written  verdict  coimtrued. 

In  a  prosiKiution  for  a-isault  with  inttrit  to  murder,  the  jury  brought  in  tlie  fol- 
lowing wTitton  verdict:  "  We  find  the  prisoner,  John  D.  Wnght,  guilty  of 
assault  with  intent  to  kill  William  Waumcr,  as  chai-ged  in  tlio  information; 
also,  that  the  shooting  done  by  Wright  was  done  under  great  provocation, 
and  we  would  recommend  the  prisoner  to  the  mercy  of  the  court."  The 
judge?,  aftflr  reading  the  verdict  aloud,  said,  "you  find  the  prisoner  guilty 
as  charged  iii  tlie  information,"  to  which  the  jury  nodded  assent;  and  the 
verdict  so  given  was  recorded  as  a  general  vercUct  of  guilty,  and  the  jury 
discharged.  On  these  facts  it  was  held,  that  the  finding  of  the  jury  could 
not  be  construed  as  a  finding  that  the  prisoner  was  guilty  of  anything  more 
than  .issault  and  battery,  and  that  the  entry  of  tlie  general  verdict  of  guilty 
in  the  record  was  unauuiorized.     Wright  v.  People,  2ii 

2.  Siijfii'iencn  of  evidence. 

On  an  indictment  for  assault  with  intent  to  murder,  where  the  evidence  showed 
a  quiurel,  in  which  the  prosecutor  struck  the  respondent  in  the  face,  the  le- 
spondent  then  going  to  the  house  and  coming  out  with  two  guns,  and  that 
the  prosecutor  then  iulvanctd  towards  the  resjwndent  \vith  threatening  ges- 
tures, taunting  him  to  shoot,  when  the  respondent  shot,  and  that  the  proso- 
ciitor  was  a  much  more  powerful  man  than  tlie  prisoner,  it  was  Md,  that  if 
death  had  ensued  it  would  not  have  been  murder,  and  the  charge  wae  not 
sustained.    Smith  v.  State,  246 

3.  In  ahsault  with  intont  to  murder,  every  ingredient  of  murder  must  be  present, 

except  deuth,  and  where  if  death  had  resulted,  the  offense  would  have  been 
mani3i.;'.igkter  and  not  murder,  the  charge  is  not  made  out.  Ibid. 

4.  Intfiif, 

AVliero  the  evidence  showed  that  the  res{)ondent  shot  at  A.  intending  to  kill 
liini,  but  mis.'^ed  him  iuid  accidentally  hit  B.,  a  by-stander,  it  was  held,  that 
\w  wiu*  not  guilty  of  at;;ault  Avitli  intent  to  commit  murder  on  B.  Barcus  r. 
Stxite,  a49 

5.  Same. 

In  a.«Kault  with  intent  to  murder,  tliere  must  be  an  intent  to  kill  the  person 
afrsaultt>d.  Ibid. 

6.  Evidence. 

The  evidence  in  tliis  ca.se  held  insufficient  to  justify  a  verdict  of  assault  \n\h 
intent  to  murder  against  two  of  the  responclents.    Seborn  v.  State,  597 

7.  Verdict  of  assault  with  deadhj  weapon  under  indictment  for  assault  with  in- 

tent to  murder. 

Where  it  appears  on  the  fivce  of  an  indictment  for  assault  with  intent  to  murder 
that  the  assault  charged  was  committ«'d  with  a  deadly  wecipon,  the  respond- 
ent may  be  found  guiltj-  of  an  assault  with  a  deatuy  weapon.  People  r. 
Liffhtner,  539 


ASSAULT  AND  BATTERY  WITH  INTENT  TO  COMMIT  RAPE. 


1.  Sujficienc;/ of  evidence  to  jutfifi/ conviction. 

On  an  indictment  for  ,as.iault  and  battijry  with  intent  to  commit,  rape,  the 
evidence  wius  substantially  as  follows:  'Hie  prosecutrix,  a  white  woman, 
luiving  parted  from  a  companion,  started  to  go  home  iJone  through  the 
woods.  She  heiird  tlie  respondent,  a  negro,  call  out  to  her  to  "  stop,  '  and 
bttw  him  running  after  her  about  seventy  yards  away.    Sho  begun  to  run  aa 


I,  ,■! 


'.    ,» 


678  .  INDEX. 

hard  aa  she  coukl,  ami  was  pui-sued  by  the  respondent,  who  called  to  her  to 
stop  three  times,  ami  wins  cutcliing  up  with  her.  He  pursued  her  about  a 
quarter  of  a  mile  througli  the  woods,  when,  coming  to  the  edge  of  tlie 
woods  he  saw  a  dweUing  house  near  by,  and  turned  oack  and  ran  oil'.  It 
was  held,  that  there  was  sutticient  endence  of  an  assault;  Uiat  there  was 
sufficient  e\'idonce  of  the  intent  to  commit  rape.  Koumam  and  Bynum, 
JJ.,  disenting.    State  i\  Necly,  CiW 

2.  Indictment. 

On  an  intUctnient  for  an  assault  with  an  intent  to  m\iah,  which  did  not  state 
that  the  act  was  done  "  unlawfully  "  or  "  feloniously,"  it  was  held,  tiuit  tlie 
mdictment  was  bad  as  to  the  intent  to  ravish,  but  good  as  an  incUctment 
for  an  assault  and  battery,  and  that  a  motion  to  quash  was  properly  over- 
ruled.   G-reerv.  State,  643 

3.  Tuo  kinds  of  rajte. 

By  shitute,  rape  is  divided  into  nape  on  females  over  tlie  age  of  twelve  years 
and  under  the  age  of  twelve  years,  and  evidence  of  a  rape  of  the  one  cUiss 
will  not  sustum  a  conviction  for  a  rape  of  the  other  cltiad.  Ibid, 

4.  Variance. 

Where  the  indictment  does  not  state  the  age  of  the  female,  tlie  court  will  in- 
tend that  she  was  over  twelve  yesivs  of  age,  and  evidence  of  a  rape  on  a 
female  under  '■'     ige  of  twelve  years  will  not  sustaui  the  indictment.  Ibid. 

5.  The  same  rule  apphes  to  indictmente  for  asKault  with  intent  to  commit  rape. 

Ibid. 

6.  Where  an  indictment  for  an  a«sault  with  intent  to  commit  rape  does  not  stato 

the  age  of  the  prosecutrix,  evidence  of  an  assault  with  intent  to  commit  rape 
on  her,  she  being  a  feuuUe  mider  the  age  of  twelve  years,  will  not  sustain  a 
conviction.  Jbid, 


ATTORNEY. 

Authofitij  of  attorney. 
H.  was  iirrest'^d  on  Saturday  night,  by  a  j-  oHcoman  without  a  warrant,  for  a 
violation  t  ■.  a  city  ordinance.  The  policeman,  after  arre.'iting  him,  t<x»lv 
away  his  mon(?y,  'W-}rL  On  Monday  morning,  H.  wius  brought  before  tlie 
police  magistrate,  who  took  what  was  meant  for  a  parol  recognizance  in  tlie 
sum  of  ^liOO,  to  appear  at  two  o'clock  in  the  afternoon  for  triid.  No  Ijo.'irl 
wius  made,  nOr  any  ent<!red  in  the  magistrate's  minutes.  II.  did  not  come 
at  two.  llie  policeman,  under  authority  of  H.'s  attorney,  iiaid  the  city  at- 
torney, for  the  city,  |:}00  of  tiie  money  m  his  hands.  (Jn  these  fiu;ts  it  was 
held,  that  the  attorney  had  no  authority  to  consent  to  tliis  use  of  his  clients 
money,  and  that  this  chsposition  of  it  was  unauthorized,  and  H.,  hainng  sued 
the  city  for  the  $300,  was  held  entitled  to  recover.  City  of  Jiloominyton  v. 
Heiland,  600 


AUTREFOIS  ACQUIT. 
See  FouMEii  Jeopaudy. 

AUTREFOIS  CONVICT. 
See  FouMiai  Jeopaudy. 


'1 


INDEX. 


679 


called  to  her  to 
:l  her  about  a 
e  edge  of  tlie 
nd  raw  oil'.  It 
Jiat  there  was 
UJid  Bynum, 
C3G 


did  not  state 
held,  that  tlie 
an  indictment 
properly  over- 
643 


:  twelve  yoai-s 

E  the  one  chusa 

Ibid. 


court  will  iji- 
f  a  rape  on  a 
ictnient.  Ibid. 

)  commit  rape. 
Ibid. 

does  not  state 

o  commit  rape 

i  not  sustain  a 

Ibid. 


warrant,  for  a 
inf,'  liim,  toojc 
flit  before  tlie 
■nizanc4'  in  tht; 
ial.  No  Ijo.'id 
.  did  not  conio 
id  tiie  city  at- 
se  fiu.'ts  it  was 
of  his  client's 
:.,hann^8uod 
iloominyton  ,•>. 
600 


BASTARDY. 

1.  Bastardy  is  a  penal  proceeding,  and  has  some  of  the  characteristics  of  a  axil 

action  and  some  of  a  criminal  prosecution.    Faulk  v.  State,  67 

2.  Imprisonment. 

Imprisonment  of  the  putative  father  for  non-compliance  with  the  judgment  in 
a  bastardy  proceeding  does  not  infringe  the  constitutional  provision  against 
imprisonment  for  debt.  •''"^'' 

3.  Evidence. 

In  a  bastardy  proceeding,  it  seems  that  it  is  proper  to  show  on  behalf  of  the  de- 
fendant that  the  child  resembles  a  tliird  person,  who  has  had  opportunUty  tor 
illicit  intercom-se  with  the  mother.  •''"»• 

i.  Same. 

In  a  bastardy  proceeding,  evidence  to  show  that  the  bastard  resembled  the  chil- 
dren of  a  man  who  had  been  seen  witli  the  prosecutrix  is  madmiasible,  being 
too  remote  and  unsatisfactory.  ■*"'"• 

6.  Degree  of  proof. 

Bastiirdy,  though  in  form  criminal,  is  in  effect  a  civil  proceeding  and  a  prepon- 
derance (A  evidence  is  sufficient  to  justify  a  conviction.  People  v.  Christ- 
man,  '^ 

7.  Jndf/mcnt. 

A  indgment  for  the  pajTnent  of  several  instalments  of  money  and  the  costs  of 

'prosecution  and  that  the  defendant  "  execute  a  proper  and  sufficient  bond 

for  the  payment  of  the  judgment  herein  in  duo  form  of  law  "  is  held  not 

oi)en  to  the  objection  that  it  requkes  the  defendant  to  give  a  bond  tor  tho 

payment  of  the  costs.  ^'"«' 

8.  Sufficienci/  of  evidence. 

On  a  charge  of  bastardy  which  is  supported  only  by  the  uncorroborated  testi- 
mony of  the  prosecutrix,  she  being  contradicted  by  three  unimpeachcd  wit- 
nesses, as  to  her  having  had  sexual  intercourse  with  others  besides  the 
defendant  about  the  time  the  child  was  begotten,  and  where  it  appears  that 
she  had  iireviously  charged  the  paternity  of  the  child  on  another  man,  the 
evidence  is  held  too  unsatisfactory  to  fix  the  paternity  of  the  child  on  the 
defendant.  McCoy  i\  People,  <  1 


BETTING  ON  ELECTION. 
Sec  Gaming. 

BIGAMY. 


1.  Evidence  of  marriage. 

In  a  prosecution  for  bigamy,  evidence  of  the  declarations  of  the  respondent  that 
a  certain  woman  was  his  wife,  and  of  the  fact  that  he  had  Uved  with,  recog- 
nized, introduced  and  repr(>seiited  her  as  his  wife,  is  sufficient  evidence  of  a 
mamage  to  submit  to  the  jury.    Commonwealth  v.  Jackson,  74 

2.  In  a  prosecution  for  big-amy,  the  first  marriage  may  he  proved  by  the  admirssion 

of  the  respondent,  in  connection  with  recognition  and  cohabitation,  but  these 

are  only  facts  tenduig  to  show  an  actuiil  mamage,  wliich  must  be  fomid  as 

.    a  fact  by  the  jury.  ■^'"'f^' 


;  iH 


6S0 


INDEX. 


3.  Void  second  marriage. 

It  ia  no  defense  to  a  charge  of  bigamy  that  the  second  wiarriage  was  one  be- 
tween a  negro  and  a  wliite  woman,  wliicli  is  prohibiteil  and  made  void  by 
statute ;  for  every  bigamous  marriage  is  void.  It  is  the  entering  into  the 
void  marriage  wliile  a  yrior  valid  mamage  exist**,  tliat  constitutes  the  gist 
of  the  ottense;  and  it  cannot  heli)  mattei's  any  that  there  are  two  eh'ments 
of  illegaUty  in  tlie  case,  instead  ot  one.  It  is  no  valid  reaxon  for  relieving  a 
pei-son  from  the  consequences  of  violating  one  statute,  that  the  iict  of  doing 
so  violated  also  another.    I'eople  v.  Jiivivn,  72 


BURGLARY. 

1.  CJiinniei/. 

On  an  indictment  for  burglar}',  entering  through  the  cliimney  of  a  cotton  house 
is  a  breaking.     Walker  o.  State,  302 


N  '.  ■' 


1. 

jr 


»*#■' 


2.  DireWing  hoKse. 

If  a  part  of  a  storehouse,  comnmnicating  with  the  part  used  as  a  store,  be  slept 
in  habitually  by  the  owner  or  by  one  of  his  family,  although  he  sleeps  there 
to  [)r()tect  the  premises,  it  is  his  dwelling  house.  If  a  perscm  who  sleeps  in 
a  part  of  a  store  house  communicating  witii  the  j)art  used  as  a  .store  is  not 
the  owner,  or  one  of  his  family  or  servants,  but  is  employed  to  sleep  there 
solely  tor  the  purpose  of  prot^'cting  the  prtmiises,  he  is  only  a  watchman, 
and  the  store  is  not  a  dwelling  house.    Slate  r.  i'oltn,  3(>J 

3.  Erldence. 

Evidence  that  the  respondimt  entei-ed  the  prosecutor's  house  between  twelve 
and  one  o'clock  at  night  by  raising  a  window  (jf  the  room  in  which  the 
prosecutor  and  liis  wife  were  sleeping,  and,  when  discov.«'red,  went  out 
through  the  window,  there  having  been  money  and  clothing  in  the  room,  is 
sutticient  to  sustain  a  conviction  lor  burglary,  although  it  docs  not  appear 
that  respondent  stole  anything,     il'oodirunl  v.  State,  'Mi 

4.  Intent. 

The  intent  with  which  a  prisoner  breaks  and  eiiti-rs  the  dwelling  house  of  an- 
other in  the  night  time  is  a  question  of  fact  for  the  jury  under  all  the  facts 
and  circumstances  of  the  ciuse.  Ibid. 

h.  In  a  prosecution  for  burglary,  the  testimony  should  V)e  such  as  to  tlio  time 
when  it  was  counuittt.'d  a.s  to  exclude  all  reasonable  doubt  that  it  was  com- 
mitied  in  the  night  time.     Waters  v.  Stole,  307 

C.  Insuffieient  evidence. 
In  a  prosecution  for  burglary,  where  the  evidence  leaves  the  time  in  which  the 
oti'ense  was  committed  exactly  balanced  between  day  and  night,  that  is, 
that  it  was  committed  within  a  period  of  about  forty  or  I'oity-tive  minutes, 
one-half  of  which  w;u<  day  and  one-half  of  which  was  night,  the  defendant 
should  have  the  beneiit  of  the  doubt  necessarily  arising,  and  ought  not  to 
be  convicted  of  a  breaking  in  the  night  time.  Ibid. 


7.  Evidence. 

Evidence  that  on  the  morning  of  August  12th,  the  prosecutor  discovered  l)etweon 
daylight  and  sunrise  that  his  house  had  been  broken  into;  that  the  hous(! 
wius  on  a  pubUc  street  in  a  town,  and  that  a  dry  goods  box  and  chair  had 
been  placeil  Ijcneath  this  window  where  the  entry  wii«  ett'i.'cted,  is  sutticient 
evidence  to  be  submitted  t«  the  jury  tliat  the  breaking  wa.s  in  the  night 
time.    State  v.  McDonald,  StiK 


"W' 


I 


INDEX. 


681 


was  one  bc- 
iiiide  void  by 
in|r  into  the 
Lutes  the  gist 
:wo  L'k'uit'iits 
T  icUoving  ii 
{U:t  of  doing 
72 


cotton  house 

au2 


tore,  be  slept 
)  sleeps  there 
fho  sleeps  in 
a  store  is  not 
;o  slei'p  there 
ii  watchman, 


Aveen  twelve 
u  which  the 
'd,  went  out 
the  room,  is 
i  not  appear 


BURNING. 

1.  Statute  construed. 

In  a  statute  which  provides  that  "every  person  who  shall  set  fire  to  anv  build- 
ing, *  *  or  to  any  other  material  with  intent  to  cause  any  buildmg  to 
be  burned,  or  shall,  bij  any  other  means,  attempt  to  cause  any  buikhnp  tc  oe 
burned,"  the  words  "by  any  other  means  "  must  be  construed  to  mean  by 
any  other  means  of  a  like  nature;  and  an  attempt  to  cause  a  building  to 
be  burned  by  soliciting  a  thurd  person  to  set  fire  to  it,  and  fumisliing  him 
with  the  materials,  is  not  witliui  the  statute.  Coolky,  J.,  lUsseHtUig. 
MelJade  v.  People,  ^1 

2.  BuniinffjaP  to  escape. 

A  prisoner  who  burns  a  hole  in  the  floor  of  the  lock-up  for  the  purpose  of  mak- 
ing his  escape  through  the  hole  so  made  is  not  guilty  of  arson.  It  seems, 
that  if  he  had  set  fire  to  the  builihng  intending  to  burn  it  up  and  make  his 
escape  in  the  confusion  attendant  on  the  burning  of  the  buildmg,  he 
would  be  guilty  of  ai'son.    Delany  t\  State.  86 

3.  Burning  insured  property. 

In  a  prosecution  for  burning  insured  property  \vith  intent  to  defraud  insurers, 
an  actual  valid  insurance  nmst  be  proved.    Meister  v.  People,  91 

4.  Evidence. 

In  a  prosecution  for  burning  insured  property,  evidence  that  a  month  before  tlie 
fire  the  defendant  wanted  a  witness  to  burn  the  property  is  aibuissible.   Ibid. 

5.  Statute  construed. 

Under  a  statute  punishing  those  who  bum  insured  property,  and  those  Avho 
cause  or  procure  it  to  be  burned,  the  defendant  who  is  charged  with  bummg 
the  property  cannot  be  convicted  on  proof  that  he  procured  the  building  to 
be  bunietl  while  he  himself  was  absent.  Burning  and  procming  to  be 
burned  are  ditl'erent  ott'enses  under  the  statute.  Ibid. 


'0. 


house  of  .in- 
all  the  fiicts 
Ibid. 

to  the  time 
.  it  wiui  coni- 


in  which  the 
gilt,  that  is, 
ive  minutes, 
iH  defendant 
ought  not  fo 
Ibid. 


?red  l)etween 
it  the  housi! 
id  chair  had 
,  is  sutticient 
in  the  night 
;J68 


CHALLENGE. 
See  JuuY. 

CHANGE  OF  VENUE. 
See  Venue. 

CHARGE  OF  COURT. 

1.  Charge  assuming  fact. 
A  charge  wliich  assumes  facts  as  proven  is  erroneous. 


Bemi  v.  Commonwealth, 
272 


2.  Same, 

On  a  trial  for  murder,  a  charge  that  "if  the  mvy  find  that  the  respondent 
stmck  the  deceased  with  apiece  of  wood,  which  wae  hkely  to  produce  death 
when  used  ;is  he  did  use  it,  and  that  deceased  died,  etc.,  is  erroneous  in  as- 
sumuig  ius  a  fact  that  respondent  used  the  piece  of  wood  m  a  manner  calcu- 
lated to  produce  death.    Leiber  v.  Commonwealth,  cWa 


682 


INDEX. 


3.  Cfiarge  dealing  with  facts. 

A  charge  which  enumerates  the  facta  which  the  evidence  tends  to  prove  is  erro- 
neous. The  chftrj,fe  fchould  point  out  the  iacia  necessiuy  to  be  found,  and 
then  leave  to  the  counsel  to  argue  and  the  jury  to  detennine  whether  or  not 
the  evidence  proves  these  facts.    Coffman  v.  'Commonwealth,  293 

4.  Presumption  of  innocence. 

It  is  error  to  refuse  the  charge  that  in  a  criminal  c»vse  the  defendant  is  presumed 
to  be  innocent,  and  before  he  can  be  convicted  the  state  must  prove  his  guilt 
beyond  a  reasonable  doubt.    Line  v.  State,  615 


CHASTE  CHARACTER. 
See  Abduction. 


CONFESSIONS. 
See  Admissions  and  Confessions. 

CONSPIRACY. 

1.  Consummation  of  fraud. 

On  an  indictment  for  conspiracy  to  defraud,  it  is  not  necessary  to  allege  or  provo 
that  tlie  fraud  wtus  successful.  The  act  of  conspinicy  is  an  ottense  of  liself, 
tliough  the  fraud  be  never  consummated.    Isaacs  t\  The  State,  103 

2.  Consummation  of  crime. 

It  is  not  necessary  to  constitute  the  offense  of  conspiracy  that  any  act  should  bo 
done  in  pursuance  of  the  conspiracy.    Landringham  v.  State,  105 

3.  Indictment. 

An  indictment  for  conspiracy  to  commit  robbery,  which  charges  an  intent  to 
"forciblvand  feloniously  take  from  the  pei-son  of  A.  15.,"  but  does  not 
charfre  that  it  was  to  be  done  "  by  violence,"  or  "  by  putting  in  fear,"  is  in- 
sufficient. Ibid. 


CONSTITUTIONAL  LAW. 


M  , 


m 


1.  A  statute  validating  all  the  ordinances  of  a  city  is  obnoxious  to  a  constitutional 

provision  that  no  statute  slionld  embnice  more  than  one  subject  matter. 
liriesirick  V.  Mayor,  etc.,  of  Brunswick,  559 

2.  A  statute  entitled  "  An  act  proliihiting  the  sale  of  spirituous  or  fennontod 

liquors,"  etc.,  prohibited  also  the  giving  away  of  liquor  on  election  days. 
The  provision  against  giving  wns  held  not  void  or  obnoxious  to  the  constitu- 
tional provision  that  "  every  law  shall  embnice  but  one  subject,  and  that 
shall  be  described  in  the  title."    Cearfoss  v.  State,  460 

3.  A  proviso  in  a  crimmal  statute  agauist  conspiracy,  which  reads  as  follows : 

*'  Provided  that  in  any  indictment  under  tins  section  it  shall  not  l)e  neces- 
sary to  charge  the  particular  felony  which  it  was  the  purpose  *  *  to 
commit,"  is  unconstitutional  and  void.    Landringham  v.  State,  105 

4.  Constitutional  right. 

ITie  respondent  waa  charged,  in  an  infonuation  for  burghuy  and  larceny,  as  a 


TNDEX. 


.   683 


{)rincipal.  He  was  found  giiilty  of  beiny  accessory  before  flic  fact  to  grand 
orceny.  The  statute  permits  an  p^cessoi-y  to  be  charged  and  convicted  as 
if  he  wei-e  a  principal.  Jhld,  not  in  derogation  of  his  constitutional  ri^ht 
"  to  demand  tlie  nature  and  cause  of  the  accusation  agamst  liim,"  ai\d  tluit 
there  waa  no  error  in  tlie  verdict.    State  o.  Casaady,  607 

5.  Wither  of  jury  in  mmUmeanoro. 

On  the  trial  of  a  criminal  complaint  for  an  assault  and  battorj',  before  a  justice 
of  the  peace,  a  defendant  may  waive  his  right  to  a  jury,  where  he  expressly 
80  elects,  and  if  he  dues  so,  a  trial  without  a  jury  is  uo^.  a  violation  of  hu 
constitutional  right.     Ward  v,  I'eojde,  565 

CONTEMPT. 

1.  Wlutt  is  a  contempt. 

A  newspaper  article  concerning  a  ci-iminal  case  pending  before  the  supremo 
court,  which  prophesies  that  the  prisoner  will  get  a  new  trial  and  eventually 
escape  justice,  because  $1,400  is  enough  nowadays  to  purchase  immunity 
from  the  consequences  of  any  crime,  and  that  "  the  couila  are  now  com- 
pletely in  the  control  of  coiTupt  and  mercenaiy  shystera  —  the  jackals  of  the 
legal  profession  —  who  feast  ani  fatten  on  human  blood,  spilled  bv  the 
hands  of  other  men,"  is  a  con t<  nipt  of  court  of  flagrant  character,  and  cal- 
culated to  embarr.iss  and  obstruct  the  atlministration  of  justice.  Scott 
and  S II  KiJiON,  J  J.,  dissenting.    I'eople  v,  Wilson,  358 

2.  Constructiie  contempt. 

Under  a  statute  that  "  tlie  said  court  shall  liafc  power  to  punish  contempt 
ottered  by  any  person  to  it  while  sittuig,"  the  court  has  power  to  punish 
u  constnictive  contempt  committed  by  a  newspaper  article  referring  to  a 
Cftso  then  pending  before  the  court.  All  acts  calculated  to  impede,  embar- 
rass or  obstruct  the  court  in  the  adnunistration  of  justice  should  be  consid- 
ered as  done  in  the  presence  of  the  court.    (And  see  note,  p.  141.)       Ibid. 

3.  It  seems  that  the  court  would  have  no  right  to  pmiish  any  criticism  on  its  de- 

cisions or  otticial  conduct  in  regard  to  cases  that  are  ended,  so  long  as  its 
action  is  correctly  stated  and  its  otticial  integrity  is  not  impeached.       Ibid. 

4.  liespor.sihility  of  jjropriefor  of  newspaper. 

The  pi-oprietor  of  a  new,s[)aper  may  be  punished  for  contempt  for  an  article 
published  in  the  newspaper  owned  by  him,  although  such  luiicle  was  pub- 
lished witho)it  his  knowledge  or  consent,  when  on  a  mle  to  show  cause 
why  he  should  not  be  pmiished,  he  makes  no  defenje  as  to  matters  of  fact, 
except  that  he  did  not  know  or  sanction  it  before  puolication.  (And  see 
note,  p.  141.)  Ibid. 

5.  liesponslhiliti/  of  managing  editor. 

The  managing  editor  of  a  newspaper  may  bo  punished  for  contempt,  for  per' 


mitting  the  puljlication  of  a  newspaper  article,  which,  although  not  written 

iblical ' 
crud'3  from  the  paper. 


by  him,  wa-s  seen  by  him  before  publi 
cfi 


ration,  and  which  he  had  power  to  ex- 

lUd. 


6.  Appearance  by  attorney. 

On  a  rule  to  show  cause  why  an  attachment  should  not  issue  against  the  re- 
spondents for  a  contempt,  if  the  respondents  rely  on  an  excuse  only,  they 
should  appear  in  iwrson.  If  they  app«?ar  by  attorney,  and  defend  on  legsu 
grounds,  an  excuse  can  only  be  regarded  in  mitigation  of  puuishment,  and 
not  as  ground  for  dischai'guig  the  rule.  I  bid, 

CONTINUANCE. 

1.  Tlie  defendant  applied  for  a  continuance  when  the  case  was  called  for  trial,  on 
Uie  ground  tliat  the  indictment  was  only  found  two  days  previously,  and 


■-.11 


It 


1 

'1 


684  INDEX. 

his  counbol  hiul  been  so  much  cnffogetl  that  he  had  not  been  aUo  to  prepare 
tiie  case  for  trial.  It  boin^  niuOu  to  ujjpear  by  tlie  a'rtiticato  of  the  trial 
judge,  that  the  ilofendunt  had  been  an-esti'd  the  tt'rm  before,  and  wiw  tlien 
fully  informed  of  the  charge  atfaiiist  him,  and  was  aHked  if  ho  dcMired 
counsel,  and  want/id  a  trial,  to  both  of  which  questiouH  he  luiswered  no: 
Jhid,  there  waa  no  error  in  overruling  the  motion  for  a  contiimance.  IShiv- 
ers  ('.  State,  '206 

2.  liiffht  to  continuance  f Of  absence  of  witness. 

Resiwndent  being  amiigned  on  the  14th,  liis  trial  waa  Bet  for  the  18lh.  On  tho 
14tii  ho  had  his  subixjcna  issued,  but  a  miiteriid  witness  in  his  behalf  could 
not  be  served,  being  temporarily  absent.  On  these  facts  being  shown  to  tho 
court  by  affidavit,  it  wiw  held,  that  a  motion  for  a  continuance  shoulil  have 
been  granted,  and  to  refuse  it  was  error.    Shiniin  v,  I'eople,  050 


CORPUS  DELICTI. 
See  Homicide. 

CROSS  EXAMINATION. 
See  Witness. 


\    111 
•I  ^' 


I' 


CUMULATIVE  SENTENCE. 
See  Sentence. 

DANGEROUS  WEAPON. 

1.  What  is  a  dangerous  weapon  is  a  question  of  fact,  and  not  of  law,  and  tho 

court  has  no  right  to  instruct  the  jury,  as  matt<;r  of  law,  that  a  iK)liceman's 
mace  is  a  dangerous  weaiwn.    Doehriny  i:  Slate,  60 

2.  What  is  a  dangerous  weapon  is  a  question  of  fact  and  not  of  law.    Bctri/  v. 

Commonwealth,  272 

DEATH  FROM  SURGICAL  OPERATION. 
See  He  iiciDB. 

DISORDERLY  HOUSE. 
See  House  of  III  Fame. 

DECEASED  WITNESS.    EVIDENCE  OF  ON  FORMER  TRIAL. 

See  Evidence. 


DISCRETION. 
Matter  of  discretion. 
Whether  or  not  a  co-respondent,  indicted  as  an  accessory,  shall  be  first  tried  so 
tliat  his  testimony  may  be  had  for  the  defense  on  the  trial  of  tlie  principal, 


INDEX. 


685 


'.I 


0  prepare 
the  triiil 
wiui  thi'ii 
J  ik'MireJ 
■LTud  no: 

'206 


On  tho 

iiU  coiUil 

wn  to  tho 

uld  have 

050 


ia  a  matter  in  tho  diHcretion  o!  tho  trial  court,  and  the  TOpreme  court  will 
not  review  the  oxcrciHo  of  that  discretion  where  there  is  lo  evidence  that  it 
has  been  abused.    Stute  v.  Underwood,  (351 

See  Indictment.    Foboeht. 


DUPLICITY. 
See  Homicide. 

DUTY  OF  PROSECUTION  IN  CALLING  WITNESSES. 
See  Homicide. 


DYING  DECLARATIONS. 
See  Homicide. 

ELECTION, 
See  FoiioEUY.    Seduction. 


,  and  tho 

liceman'a 

60 

Bern/  V. 

m 


VL. 


t  tried  so 
>rincipal, 


EMBEZZLEMENT. 

1.  Snfflekncii  of  emi>hifment. 

Under  an  indictuu'nt  foundt'd  on  tho  ordinary  statute  against  embezzlement, 
evi(lt'nee  that  the  prosecutor  fjrave  tlio  prisoner  a  watch  which  the  prisoner, 
a!4  ajjent  tor  the  i)rosecutor,  wa.s  to  trade  for  a  wagon  when  he  could  find  a 
suitable  opjwrtunity,  ajid  for  which  sen'ice  the  prosecutor  was  to  pay  the 
prisoner  $").00,  sliows  a  suthcient  employment  to  make  tlie  prisoner  guilty 
of  einbi'/zlcuuMit,  in  convertuig  the  watch  to  his  owii  use.  Slate  v.  Foster, 
(and  see  not*',  p.  141J),  146 

2.  Statute  const riii'd.  i 

A  statute  against  ombczzlempnt  from  "  any  coi-porate  body  in  this  state  "  does 
not  extend  to  or  include  foreign  corporations  doing  business  in  the  state 
witliout  autliority  of  law.    Cory  v.  State,  166 

3.  C^erk  or  scrnint.  ' 
'Die  prisoner  was  engaged  by  the  prosecutors  to  solicit  ordei-s  for  them,  and  was 

to  Ikj  paid  by  couuuissioii  on  the  sums  received  through  his  means.  He  had 
no  authority  to  receive  nionev ;  but  if  any  was  paid  t»  him  he  was  forthwith 
to  hand  it  ovi-r  to  liis  employers.  He  was  at  liberty  to  apply  for  orders 
wherever  he  thought  most  convenient,  but  was  not  to  employ  himself  for 
any  other  persons  than  the  prosecutors.  Contrary  to  his  duty  he  appUed  for 
payment  of  a  (.'ertain  sum;  having  n.'ceived  it,  liu  applied  it  to  his  own  use,, 
and  denied,  wlien  itsked,  that  it  hiul  been  ])aid  to  hhn:  Held,  on  the  above 
fiu;ts,  tliat  tht!  prisoner  was  not  a  "clerk  or  servant"  within  tlie  meaning 
of  24  and  2")  Vic,  cli.  90,  sec.  68.    Queen  t'.  Negus,  X^ 

4.  Same. 

The  prisoner's  father  was  clerk  to  a  local  board,  and  held  other  appointments, 
llie  prisoner  lived  with  his  father,  and  iissisted  him  in  his  office,  and  in  the 
business  of  the  board.  In  his  father's  absence,  the  prisoner  actetl  for  him 
at  the  nwetijigs  of  the  board,  and  when  present,  he  assisted  him.  The  pris- 
oner wiu=i  not  appointed  or  paid  by  the  tward;  and  there  wiis  no  evidence 
that  he  received  any  salary  from  liis  father.    The  board  having  occasion  to 


-J 


y 


686  TNDEX. 

raise  a  loan  on  mortsrn.gt\  tlio  priHonor  mantiprcd  Uif  iMiHinoHH  for  Iiin  fatlicr, 
and  at  hin  hitlier'H  oftiee  riTf  ivod  the  money  from  tiif  niortjfiirfi'i'H,  und  iii>- 

Sio;  '•iiitod  11  part  of  it  to  liis  own  iiho  :     //(■/(/,  tiuit  tlii're  wiw  t'vidt'nco  that 
10  prinonor  wiw  a  cU-rk  or  wrvant  to  liiH  fatiifr,  or  t'n\ployt'd  as  clfrk  or 
servant,  and  was  yuilty  of  uaibeialonientfromliim.    (Jmm  r.  h'oulkci<,  153 

6.  Direction  in  ui'itinij. 

The  prisoner,  a  stock  and  shan^  dealer,  wa<*  employed  l)y  the  prosecutrix  to  pur- 
chase securities  for  her.  He  bouj,'iit  in  iiis  own  name,  and  reieived  money 
from  her  from  time  to  time  to  cover  the  amountH  he  iiad  paid  or  laid  to  pay 
for  the  securities.  Sucli  payments  were  not  made  ajfuinst  any  particuhir 
item,  l)ut  in  chenues  for  round  Hums.  On  one  occasion  he  wTote  to  her,  "  I 
indfw  a  contract  note  for  iiOO/.  J.  l)or.ds,  at  112,  Itki/.,"  and  the  contract 
noto  ran,  "  Sohl  to  Mrs.  S.  (the  prosecutrix),  MOO/.  .1.,  at  1 1'J.  :i.i(;/.,"  and  was 
ei^fned  by  the  prisoner.  The  prosecutrix  wrote  in  reply:  "  I  have  just  re- 
ceived your  note  and  contract  note  for  three  J.  shares,  and  inclose  a  chemio 
foriiMli/.  in  payment."  'J'lie  prisoner  never  paid  for  the  hoiids,  but  in  viola- 
tion of  i^ood  faith,  appropriated  to  his  own  use  the  priK'eeds  of  the  cheque: 
//«■/(/,  that  the  letter  of  the  prosecutrix  was  a  direction  in  writinj;  to  apply 
tl'.?  proceeds  of  the  cheque  to  pay  for  the  bonds,  if  they  luul  still  to  U'  paid 
for,  within  the  meaninjf  of  'J4  and  2'*  Vic,  cli.  i»(i,  sec.  l'>;  and  that  the 
prisoner  \vi\s  rightly  convicted  of  a  misdemeanor  under  that  section.  (Jioen 
V.  Christian,  ir)? 

See  Lahcent. 


ERROR. 

1.  Alternative  error. 

Where  the  record  does  not  show  whether  inadmiR.«ibIo  evidence  which  w.ns 
objected  to  was  admitted  or  not,  but  the  court  can  sec  from  the  record  that 
if  such  evidence  WiW  not  admitted,  there  is  nothinj;  to  sustain  tin?  verdict, 
the  ju<l^'ment  and  verdict  will  be  set  aside.  If  the  objectionable  evidence 
was  aduiitteil,  that  is  error.  Jf  it  was  not,  the  verdict  is  erroneous  beciuiso 
there  is  nothing  to  support  it,   in  either  ciuse  there  is  error,  Uroini  r.  I'iDjilc, 

2.  Error  must  be  injurious. 

The  record  not  disclosing  what  the  respondent  expecK'd  to  prove  by  a  wit- 
ness, the  court  cannot  reverse  the  judgment  because  the  trial  I'onrt  excludeil 
a  legid  (piestion.  For  all  that  api)cai"s  under  such  ciixiimstances,  the  ex- 
clusion of  the  (jui'stion  may  have  been  a  benefit  to  the  respoiKlent.  It 
must  atfinnativt'ly  appear  by  the  record  that  an  error  complained  of  was 
injurious  to  tin;  pai  ty.    Jiiirns  >■.  Stuti;  o'J.'i 

3.  Error  that  Joes  not  prejudice. 

Where  the  jury  finds  the  respondent  guilty  of  murder  in  the  first  degree,  under 
instnictions  properly  di.'fining  i.uu'der  in  the  first  degree,  it  sinus  that  r<.- 
spondent  would  not  be  prejudiced  i)y  an  erroneous  instruction  as  to  murder 
in  Uie  second  degree.    Slate  v.  Underwood,  2")1 

4.  Formal  error  cured  by  verdict. 

Any  error  in  tJiis  case  in  tJie  summoning  of  the  jury  held  cured  by  the  statute 
of  amendment.     Lynch  v.  Connnonueaith,  "J^iJ 

5.  hnpropor  remark. 

Tlie  court  has  no  right  to  say  in  the  presence  of  the  jnr>'  that  it  was  the  duty 
of  the  prisoner  to  bring  forward  his  defense  on  his  preliminary  exiunination, 
Sullivan  V.  reoplc,  oo'd 

6.  Remark  by  court  in  presence  of  jury. 

An  improper  remark  by  tlie  court,  lulverse  to  the  prisoner  in  the  presence  of 


INDEX. 


687 


the  jury,  will  bo  conHidcrod  on  writ  of  ccror  a»  though  it  were  a  part  of  the 
chiirge.  Jbid. 

7.  Improper  remark  in  }>reseure  ofjiirif. 

An  iinpropi-r  rcniiirk,  tm-judiciul  to  the  reHpondont,  mivde  by  the  court  in  rulinu 
out  tt'Btinioiiy  is  eiTor.    Shirwin  v.  i'eople,  650 

8.  Error  in  request  to  charge. 

If  tiiere  i«  ixny  eiTor  in  ii  request  to  charge,  or  if  a  request  to  chargo  in  the  dis- 
junt'tive  is  iwked,  either  branch  of  which  is  erroneous,  the  whole  charge  is 
properly  refused.    State  v.  Citusadij,  567 


EVASION. 
See  Liquon  Selling. 


EVIDENCE. 

1.  Of  incorporation. 

On  tlio  ti-iiil  of  an  indictniont  for  stealing  from  a  corporation,  evidence  that  a 
company  known  liy  tlie  name  givi'n  in  the  indictment  is  a  corjioration  de 
"■    '    '       f  business  is  sufficient  evidence  of  incorporation    I'eopie  v,  liarric, 


facto  donig  1 


178 


2.  Transcri/'ts  of  puhiic  reconh. 

Under  a  statute  which  provides  that  the  certificate  of  any  public  officer  of  the 
Btate  to  aiiv  record,  lUKunn'iit,  })aper  on  file,  or  other  matter  or  thing  in  his 
othce,  simii  be  admissilile  in  evidence  in  any  court  of  the  static  Held,  that 
s\ich  certificate  is  admissible  against  a  defendant  in  a  criminal  ca.'te,  and 
that  his  constitutional  right  to  be  confronted  \vith  the  witnesses  against  him 
is  not  thereby  violat^'tl.    Shivers  i\  Sttde,  206 

8.  Eridenre  ofd'reascd  witness  on  former  trial. 

'Hie  evidence  of  a  decea.sed  witness,  given  on  the  first  trial  of  the  respondent, 
is  admissible  against  him  on  a  second  trial  of  the  same  uidictment.  Kean 
r.  Comnionunillh  (and  see  noU\  p.  '20;l)t  199 

4.  But  the  statement  in  a  bill  of  exceptions  of  the  testimony  of  a  deceased  witness, 

given  on  a  tormer  trial,  is  not  admissible  against  the  respondent  on  a  second 
trial  of  tlie  same  indictment.  The  testimony  of  tlie  deceased  witness  must 
be  proved  by  i)ersons  wiio  were  iivsent  at  the  first  trial.  The  respondent 
hius  a  riglit  to  ue  confronted  with  the  witnesst.'s  against  him.  Ibid. 

5.  Parol  eridence  of  what  the  Ian'  requires  to  he  reduced  to  writing. 

Where  the  law  requires  a  committing  magistrate  to  take  the  voluntary  confes- 
sion of  the  accused  in  writing,  the  writing  is  the  best  evidence  of  what  state- 
ment lie  made  on  his  examination,  and  without  proof  of  the  loss  or  destruc- 
tion of  tht;  writing,  it  is  not  competent  to  prove  by  parol  what  tJie  accused 
said  o\  such  examination.     Wright  v.  State,  191 

6.  Memorandnm. 

Wiiere  -a  witness  refers  in  his  testimony  to  a  memorandum  as  showing  a  fact 
involved  in  the  issue,  and  states  that  he  has  such  memorandum  in  his  pocket, 
it  is  error  for  the  couri  to  refuse  to  compel  the  witness  to  produce  the  mem- 
orandum.   Daniel  r.  State  (and  see  note,  p.  187),  187 

7.  Conclusion  of  fact. 

It  is  not  competent  for  a  witness  who  hiw  testified  "  that  ho  slept  in  the  same 
room  with  tlie  prisoner  the  same  night  that  the  crime  he  is  charjred  with 
was  committed;  tliat  tlie  witness  wius  wakeful;  that  he  saw  the  prisoner  go 
to  bed,  and  found  him  in  bed  the  next  morning  when  he  woke  up,"  to  testify 


J  > 


088 


INDEX. 


further,  that  in  his  opinion  the  prisoner  could  not  have  pone  out  T^-ithout 
his  knowledf^o.  Iliis  would  be  testifyinior  to  an  inference  of  fact  which  it  is 
the  province  of  the  jury  to  dmw.     Dennett  c.  State,  188 

8.  Presumption  of  fact, 

Tliere  is  no  presumption  of  fact  which  is  not  entu-ely  within  tlie  di^wsal  of  a 
jur>'  in  a  criminal  case.    Hamilton  v.  State,  618 

9.  Same. 

Intent  may  Iw  inferred  from  the  act,  but  there  is  no  artificial  rule  of  law  which 
requires  or  fUows  a  particular  intent  to  l)e  presumed  from  piven  facts,  when 
the  undifij/UDed  evidence  shows  that  no  such  intent  was  in  fact  entertained. 
Barcusv  S'ate,  249 

10.  Statement  of  co-con.opirator. 

A  statement  l)y  one  respondent  made  the  day  after  the  commission  of  the 
crime  is  not  admissible  apainst  his  co-respondent,  althouffii  it  hM  appeared 
that  there  was  a  conspiracy  between  them  to  commit  the  crime.  Hamilton 
V.  State,  618 

11.  It  is  error  to  allow  a  jury  to  infer  a  fact,  of  which  there  is  no  evidence.    Saun- 

ders r.  People,  346 

12.  Insufficient  eridence. 

Testimony  which  raises  a  mere  conjecture  oupht  not  to  be  left  to  a  jury  as  e\-i- 
dence  of  a  fact  which  a  party  is  required  to  prove.    State  v.  Carter.         444 

13.  Comparison  of  handwriting. 

Where,  on  the  trial,  the  respond^^nt  admitted  the  ponuineness  of  a  certain  letter, 
it  wa.s  held  that  the  jury  mipht  iise  it  to  compare  with  the  handwriting  of 
letters  whose  penuineness  was  disputed  by  tlie  respondent,  but  to  whose 
genuineness  a  \vitness  testified.    State  r.  Clark,  34 

See  Admissions  and  Confessions. 


EXTRADITION. 

1.  Fugitives  from  justice. 

The  povt^mor  of  the  state  has  no  authority  to  surrender  a  fiipitive  who  han  com- 
mitt^nl  a  crime  in  another  state,  unless  judicial  proceedinjrs  have  been  com- 
menced apiiinst  him  for  the  crime  in  the  state  m  which  it  wiib  connuitted. 
Ex patie  John  White,  IG'J 

2.  Arrest  of  fugitires  from  justice, 

A  jierson  cannot  Vm^  arrested  here  for  a  crime  committed  in  another  state,  imless 
a  prosecution  ha.s  been  commenced,  and  is  jiendinp  ap.imst  him  for  the 
alleped  crime  in  the  state  liavinp  jurisdiction  of  the  offense.  Ibid. 

3.  Constitufionalifi/  of  law  concerning  fugitires  from  justice. 

The  court  say,  without  passinp  authoritatively  on  the  point,  that  no  reason  is 
perctMved  why  a  law  allowinp  fupitives  from  justice  fleeinjf  from  another 
state  to  Ije  an-ested  here  and  delivfred  uj)  to  the  authorities  of  the  state 
having  jurisdiction  of  thu  offense,  is  not  constitutional.  Ibid, 


EXPERTS. 
See  Homicide.    Seduction. 


INDF^C 


689 


I    1(1 

i 


:i 


FALSE  PRETENSES. 

1.  On  an  indictment  for  false  pretenses,  in  the  sale  of  a  horse,  a  pretense  thattho 

horse  was  sound,  when  the  respondent  knew  that  he  was  not,  is  a  false  pre- 
tense within  the  statute.    State  v  Stanley,  209 

2.  Tmlidment. 

An  indictmen*^  for  false  pretenses  in  selling  a  mortgage  which  alleges  thatt  he 
prisoner  pretended  that  he  had  recently  sold  the  real  estate  covered  by  the 
mortgage,  and  that  said  real  t.'state  was  situated  m  I.,  but  which  does  not 
give  the  name  of  the  purchaser  or  describe  the  property,  and  does  not  allege 
that  such  name  and  description  are  unknown,  is  bad  on  a  motion  to  quash  as 
being  too  uncertain  and  indehnitti.    Kellar  v.  State,  211 

3.  Same. 

In  an  indictment  for  false  pretenses  in  the  sale  of  a  $500  mortgage,  where  the 
pret4'nse  was  that  the  real  estate  covered  by  the  mortgage  wius  worth  llJ.-'iOO, 
an  allegation  tliat  the  real  estate  was  not  worth  $:H,')00  is  insutticient.  The 
indictment  should  show  that  the  property  was  not  of  suihcient  value  amply 
to  secure  the  sum  of  |oOO.  Ibkf. 

4.  Intent  to  defraud. 

It  seetm  that,  in  a  prosecution  for  false  pretenses  in  the  sale  of  a  mortgage,  if 
the  real  estate  covered  by  the  mortgage  is  sufficiently  valuable  amply  to  se- 
cure the  sum  due  on  the  mortgage,  it  is  immaterial  that  the  respondent 
represented  tlie  real  estate  to  be  very  umch  more  valuable  than  it  actually 
was.  Ibid. 

5.  Indictment. 

In  an  indictment  for  false  prettmses  in  the  sale  of  a  moiigage,  where  the  pre- 
t<>nse  is  tiiat  the  property  covered  by  the  mortgage  is  not  subject  to  any 
prior  liens,  an  allegation  that  the  property  wa.s  subject  to  prior  liens,  but 
which  does  not  set  them  out  or  describe  them,  is  insufficient.  Ibid, 

6.  Future  events. 

Representations  of  future  events  are  not  false  pretenses,  which  must  be  as  to 
existing  fticts.  Ibid. 

7.  Indictment. 

An  indictment  containing  contradictory  and  repugnant  allegations  is  bad.    Ibid. 

8.  Same. 

The  indictment  in  this  case  is  held  to  allege  facts  sufficient  to  deceive  a  person 
of  ordinarj'  caution  and  prudence.    Jones  v.  State,  218 

9.  Property  obtained. 

Where  a  note  was  obtained  by  false  pretenses,  and  a  few  hours  afterwards  the 
i-i'spondent  induced  the  prosecutor  to  exchange  that  note  for  a  second  of  the 
same  tenor,  l)ecause  the  first  was  written  in  pale  ink,  it  %yas  held  that  the 
evidence  was  sufficient  [o  sustain  the  allegation  of  the  indictment  which 
charged  tiie  obtaining  of  the  second  note  by  means  of  the  false  pretenses,  it 
being  all  one  transaction.  Ibid. 

10.  False  token. 

A  i^rinted  business  card,  such  as  is  ordinarily  used  by  business  men,  purporting 
to  Ite  the  ciird  of  a,  nuinufacturing  firm  in  (.'.,  which  is  not  a  genuine  bus- 
iness card  of  such  ffiun,  but  fraudulent,  is  a  false  token.  Ibid. 

11.  Indictment. 

An  indictment  for  false  pretenses,  which  does  not  allege  that  the  prosecutor  re- 
lied on  the  false  pretenses  as  true,  is  bad  on  a  motion  to  quash.  Ibid 

Vol.  I. -44 


ii 


690 


INDEX. 


12.  Same. 

An  indictment  for  false  pretenses  which  does  not  set  out  the  contract  into  which 
the  prosecutor  Wiis  induced  to  enter  by  meims  of  the  false  pretensco,  is  Ijail 
on  a  motion  to  rjuash,  because  it  does  not  show  why  or  how  the  prosecutor 
was  induced  by  means  of  the  false  pretenses  to  part  with  his  property.  Ibid. 

13.  Same. 

An  indictment  for  false  pretenses  which  does  not  allege  that  the  respondent 
'*  knowintfly"  made  the  fidse  pretenses  is  bad  on  a  motion  m  an*est  of  judg- 
ment.   Alaranda  v.  State,  225 


FEAR, 

See  Assault. 

FORGERY. 

1.  Letter  of  introduction. 

A  letter  of  introduction  directed  "to  any  railroa*!  superintendent,"  Ix'speakiug 
courtesies  towiu'd  the  bearer,  has  no  XegA  valiihty  and  affects  no  legal  rijrhts, 
and  is  not  a  subject  of  forgerj*.     Waterman  v.  People,  225 


3 


2.  Imperfect  instrument. 

An  indictment  chartring  respondent  with  forging  a  bank  check  payable  to  tiie 

order  of  is  bad  on  denmnvr.     A  check  not  payabli;  to  bearer,  or  to 

the  onlor  of  a  named  person,  is  so  imiwrfect  that  it  could  not  defraud  any- 
one.     Williams  r.  State,  .  227 


3.  Indictment. 
An  indictnu^nt  for  forgery,  which  does  not  allege  who  was  intended  to  be  de- 
frauded l)y  the  forged  instrument,  is  biul  on  demurrer.  Ibid. 


4,   Variance. 

An  indictment  for  forging  a  note  purported  to  set  forth  the  note  according  to 
its  tenor.     'J'he  signature  to  the  note,  as  stilted  in  the  indictment,  was, 

liii  ,  .  his 

Oiha  X  CaiT.    The  note  offered  in  evidence  wa.s  signed  Oatha  x  Can*.  Held, 
mark.  mark. 

a  fatal  variance,  and  the  note  inadmissible.    Brown  v,  People,  228 


Ibid. 


5.  Tenor. 
The  word  "  tenor  "  binds  the  pleailer  to  tlie  strictest  accuracy. 

6.  Election  — discretion. 

On  the  trial  of  an  indictment  containing  two  counts,  one  of  which  alleges  tin' 
forging  of  a  draft  and  the  other  the  uttering  and  publishing  of  tJie  forged 
draft  ius  true,  it  is  not  eiTor  for  thu  court  to  refuse  to  require  the  prosecutor 
to  elect  on  wiiich  count  he  will  proceed  to  trial.    This  is  a  uiattt^'r  ui  the  dis- 


cretion of  the  triiil  court.    Miller  e.  Slate, 


2:W 


7,  Presampfion  offonftnqfrom  proof  of  uttering. 

Tiie  uttering  and  i)ublishing  of  a  forged  instnnnent  by  the  rpsj)ondent  raises  no 
presumption  of  law  that  he  connnitted  the  forj<t^ry.  ( hi  a  charge  of  forg- 
ery the  uttering  ami  ^)ublishing  of  the  forged  inslrumeiit  are  ciiTumstances 
to  be  weighed  by  the  juiy  in  connection  with  the  other  evidence  iu  the  casf. 

Ibid, 


INDEX. 


691 


FORMER  JEOPARDY. 

Where  a  prisoner  has  once  been  put  on  trial  for  manslaughter,  before  ajary 
impiL'iek'd  and  sworn,  and  witnesses  have  been  examined,  he  has  been  put 
in  jeopiu-dy,  and  if  the  judt'e,  without  tlie  consent  of  the  respondent,  dis- 
charges tlie  jui*,y  without  submitting  the  ease  to  them,  this  is  a  bar  to  any 
further  prosecution  for  the  same  act,  and  he  cannot  afterwards  Ije  tried  on 
an  indictment  for  murder  for  the  same  lulling,    reo^ih  r.  llttiuk-ehr,     507 

The  respondent  was  indicted  for  larceny,  and  while  being  tried,  anoUe  pros. 
was  ent<'red  on  tliat  indictment.  He  was  then  indicted  for  burglary  in  the 
same  transaction,  and  to  this  inrlictment,  pleatled  his  former  jeopardy 

Jlehl,  that  the  plea  was  good,  and  a  bar  to  further  prosecution      ' "  • 

State, 


Jones  V. 
510 


3.  The  unnecessary  discharge  of  one  juror  against  the  objection  of  the  respondent, 

on  trial  for  felony,  is  a  discharge  of  tlie  whole  juiy,  and  a  bar  to  further 
prosecution  of  the  indictment.     W Brian  v.  Commonwealth,  520 

4.  Discharge  of  jury  in  rcs])ondenf''s  absence. 

On  a  trial  for  munh^r,  the  juiy,  after  being  out  thirty-two  hours,  were  dis- 
charged in  the  absence  of  the  respondent  on  account  of  their  inability  to 
agree.  This,  l)eing  sj)ecially  pleaded  on  a  second  trial  of  the  same  indict- 
nu'iit,  Wius  litld  a  good  plea  and  a  bar  to  further  prosecution.  State  v.  Mll- 
non,  529 


The  rt^spondent,  liaving  been  tried  for  homicide,  the  jury,  while  the  respondent 
was  absent,  confined  in  jail,  ri'turned  a  verdict  of  guilty  of  voluntarj-  man- 
slaughter. On  motion  of  respondent  the  verdict  was  set  a,side.  On  being 
an-aignt  '  for  a  second  trial,  resixmdcnt  pleiuled  specially  his  former  jeop- 
ardy, held,  that  the  plea  was  good,  and  a  bar  to  further  prosecution.  No- 
lan v.  State,  532 

6.  When  the  defendant  has  been  once  legally  put  on  trial,  the  jury  sworn  and 
evidence  int.roduced,  any  unnecessary  discharge  of  the  jury  without  their 
having  rendered  a  legal  Tei-dict,  iind  without  the  respondent  s  consent,  oper 
ates  a.s  an  aeiiuittal,  and  is  a  bar  to  a  further  prosecution  for  the  sam 


ofl' 


li'use. 


lime 
Ibid 


1.  Aidrcfois  convict. 

A  special  plea  to  an  indictment  of  autrefois  convict  before  a  court  which  had  no 
jurisdiction  over  the  ott'ense  is  bad.    yi't/t7t  r.  State,  543 

8.  Ciinrirtlon  of  assault  after  acquittal  of  murder. 

On  an  indictment  for  murder  in  the  statutoiy  fonn,  charging  merely  that  the 
prisoner  teloniously.  wilfully,  and  of  his  malice  aforethought  did  kill  and 
murder"  the  deceased,  no  conviction  could  be  had  of  an  assault,  and  con- 
seiiuently  an  ac<;uittid  on  such  an  indictment  is  no  bar  to  a  prosecution  for 
an  assault  for  the  same  act.    L'ei/.  v.  Smith,  511 

See  Assault  and  Batteiiv.    Incest. 


FIGHTING. 
See  Assault  and  Battery. 


1   * 


Tl 


692 


INDEX. 


GAMING. 


1.  Things  of  value, 

Cliips  and  checks  redoemable  in  money  by  the  dealer  at  a  gambling'  tab^le  are 
things  of  value,  within  the  meaning  of  a  statute  against  gaming.  Portir 
V.  State,  2-i-l 

2.  Keeping  gdmbling  house. 

The  o^vner  of  a  billiard  table  which  is  used  with  his  knowledge  and  consent  for 
playing  billiards,  on  an  underetanding  between  the  iiliiyt'i-s  that  the  loser 
shall  pay  for  the  game,  is  guilty  of  keeping  a  gambUng  house.  State  v. 
Book  (but  see  note,  p.  237),  2:J4 


3.  Betting  on  election. 
Betting  upon  the  result  of  an  election  is  not  gaming. 


State  V.  Henderson,    2o3 


4.  Plai/ing  hillianls. 
Under  a  statute  which  provides  that  lo  "  play  cat  any  jsjame  for  any  sum  of  money, 


or    other  property  of  value"  is  jrambling,  playing  at  billumls  where  tli 
loeer  pays  for  the  game  is  gambbng.    State  v.  Book,  2'.. 


the 
34 


5.  Burden  of  proof. 

On  the  trial  of  an  indictment  for  pennitting  a  minor  to  play  billiards  without 
the  consent  of  his  parents  or  guardian,  the  burden  of  proof  is  on  the  state  to 
show  tliat  the  minor  did  not  have  the  consent  of  his  parents  or  guardian. 
Conyers  v.  State,  237 

6.  Indictment. 

Under  a  statute  which  prohibits  the  keeper  of  a  billianl  table  from  allowinfr  a 
minor  to  play  on  it,  and  inflicts  a  tine  for  each  game  allowed  to  be  played, 
an  indictment  which  does  not  allege  that  a  game  wiw  played,  or  naiue  the 
person  with  whom  the  minor  played,  or  give  any  reason  for  not  naming,' 
Imu,  is  bad,  on  a  motion  to  quash.    Zook  v.  State,  240 


GOOD  FAITH. 
See  Adultery.    Gaming.    Luicou  Selling. 


GRAND  JURY. 

1.  Alien  grand  juror. 

A  special  plea  to  an  indictment  that  one  of  the  jurors  who  found  it  was  an  alien 
is  a  good  plea.     Beieh  v.  State,  54t} 

2.  Oath  of  witness  before  grand  jilrg. 

A  special  plea  to  an  indietjnent  tlmt  the  witnessi's  on  wliose  evidence  it  wus 
found  were  not  prop<.'rly  swoni,  wliich  does  not  name  the  witnesses  or  spi'iify 
the  oath  they  took  is  bad.  Ihid. 

3  Grand  juror  as  iritness. 

There  is  no  iide  of  law  whicli  jjroliiltitA  a  grand  j'uror  ginng  evidence  against  a 
prisoner  who  is  being  tried  on  an  indictment  found  by  the  !jra;.l  jury  of 
of  which  the  grand  juror  wits  a  member.    State  v.  McDonald,  3Ud 


INDEX. 


693 


ig  table  aro 

ig.     I'ortir 

2:!2 


consent  for 
at  the  lo.ser 
e.     State  r. 


ei'son, 


u  of  nioiu'v, 

!  where  the 

2:34 


'ds  without 

the  stati;  to 

■  guardian. 

237 


allowing  a 

I  be  i)hiyeil, 

ir  name  the 

not  uaiiiin;,' 

'240 


GUILTY  KNOWLEDGE. 

Guilty  knowledge  maybe  proved  by  cii-cumBtantial  evidence  as  well  as  any  other 
fact.    Meiatef  v.  i'eojjle, 

HABEAS  CORPUS. 

1.  Federal  prisoner  in  state  prison.  ^        tt  -x  i  c^  *„»  w  a 
A  nersonwho  has  been  convicted  of  a  crime  agamst  the  United  States  by  a 

^tV^en/courtLd  confined  in  the  prison  of  the  state  with  the  consent  of  the 
S«  dSied  to  K  the  custoSy  of  the  federal  authontxes.  Ex  parU 
Le  bur, 

2.  lieleusc  of  federal  prisoners  by  state  courts. 

The  roui-t«  or  iud<'cs  of  the  state  have  no  authority  to  release  a  pnsoner  upon  a 
/,X  /f  S  7  when  the  prisoner  is  in  the  custody  of  the  authorities  ot  the 
uSffl's;  pui^uant  t^  a  judgment  of  conviction  by  a  federal  tribunal  of 
cxclubive  jurisdiction  in  the  case. 

q  A  wTit  of  error  to  an  order  refusing  a  discharge  on  habeas  corpus  will  not  be 
dSis"ed  Tcause  wl  t!n  the  argument  is  rem.-hed,  the  term  ot  impiisonment 
whkfi's  set  u^hi  th^^^^^^  to  the  writ  of  habeas  corpus  has  expu-ed. 
r  "sum  nfthe  ni  pr^Snment  to  be  at  an  end,  because  the  sentence  i^  ex- 
is  would  be  to  take  for  gi-anted  the  validity  of  the  sentence  which  is  the 
very  matter  in  question.    Lark  v.  State, 

See  Sentence. 

As  to  discharging  prisoner  confined  under  an  illegal  sentence,  by  habeas 
corpus,  see  note,  p.  557. 

HABIT,  PROOF  OF  AS  MEANS  OF  IDENTIFICATION. 
See  HoiiiciDE. 


II 


m 

'■V-tf 


vas  an  alien 
54:J 


Icnee  it  wus 

es  or  spi'cify 

Ibid. 


L'e  against  a 

fa',.l  jury  of 

JOS 


HOMICIDE. 

1.  Murder  in  .first  def/ree. 

The  fact.«  in  this  civse  held  sufficient  to  sustain  a  verdict  of  guilty  of  murder  m 
the  first  degree.    McCue  v.  Commontvealth,  '^^ 

2.  Dearee  of  murder.  ,        t  i      ^ 
The  respondent  pleaded  guilty  to  an  indictment  for  murder.    In  accordance 

\vith  thTstatute,  the  trial  court  heard  evidence  of  Uie  circumstances  of  the 
i  „^^,l  nrlYnrUred  the  rcsDondcnt  guilty  ot  murder  in  the  first  degree,    A 
^o^SaiS  ma^^^^^^  findings,  and  for  filing  the  testimony 

on^wlc  the  findings  were  based,  the  recorS  wiw  removed  to  the  supreme 
court  by  a  writ  of  cnov,  and  the  judgment  of  the  tnal  court  reverse^  and 
the  respondent  a^ljudged  guilty  ot'  murder  m  the  second  degree.  Jo»ey . 
Connnonwealth, 

'\  Tlie  respondent  had  taken  to  hard  cbinkingon  ax^count  of  the  continued  adul- 
f!?r;™  oThis  w-ife  He  hiul  attempt*id  suicide  by  taking  laudanum,  and 
Mhml  is  iSwii-s  saved,  continued  up  to  the  time  of.  the  killing  in  a  con- 
st Sacf  nervous  excit.;ment,  drinUg,  and  keeping  laudanum  about 
stant  st.itc  or  m  r  .  _„,i„i,i,  h„  ^as  in  a  state  ot  high  nervous  excite- 


i;  .* 


694 


INDEX. 


He  said  he  had  come  to  settle  the  fuss.  Hi.s  mother-in-law  told  hiin  to  (jro. 
He  stepped  back.  >Slie  picked  w^  a  stool,  and  said  slie  would  level  him  with 
it  if  he  did  not  go.  He  said,  '*  1 11  level  yon  now,"  and  innuediately  jjullfd 
out  a  pistol  and  shot  her.  I'revious  to  this  he  had  Vie(!n  on  j^ood  terms  witli 
her.  IMit,  nmrder  in  the  second  degree,  tliere  not  being  suthcient  evidence 
of  premeditation  and  dehberation.  Ihid. 

4.  Presumption  as  to  degree  of  murder. 

Where  the  evidence  shows  that  respondent  kiileil  deceased  mth  a  pun  loaded  by 
lK)wder  and  bullets,  the  law  presumes  the  killing  t«j  be  int<'nlionai,  and 
ID  is  nmrder  m  the  second  degit.'e,  in  the  absence  of  proof  to  the  contrary, 
•  iid  it  devolves  upon  the  defendant  to  .«>how  from  the  evidence  in  the  cause, 
I  'he  reasonable  satisfaction  of  the  juty,  tliat  lit;  is  guilty  of  a  less  crime, 
''^   hat  he  acted  in  self-defense.    State  r.  L'lahraood,  'iol 

5.  In  cases  of  homicide,  if  circumstances  of  wilfulness  and  deliberation  are  not 

proveJ.  ^'-'^  law  presumes  the  kiUing  to  be  nmrder  in  the  second  degree 
.iy.  Ibid. 


Wh 


1 


h-\ 


6.  Same. 

On  a  trial  for  felonious  homicide,  no  presumption  arises  from  the  killing,  of  an 
ort'ense  liigher  than  nmrder  in  the  second  degi'ee.    McCuc  v.  Cumnwnurallli, 

2m 

7.  Manslaughter. 

In  a  prosecution  for  homicide,  where  it  appears  that  no  weapon  was  used,  but 
that  death  resulted  from  a  blow  or  a  kick  not  likely  to  cause  death,  the  of- 
fease  is  manslaughter  and  not  murdt-r,  although  the  lussault  Ix;  unlawful 
and  malicious,  umess  the  respondent  did  the  act  with  intent  to  cause  death 
or  grievous  bodily  hanu,  or  to  inn-iH'trate  a  felony,  or  some  act  uivolving  all 
the  wickedness  of  a  felony.     W'eJlar  t    I'eople,  2T(i 


8.  Eosistintj  illegal  arrest. 

On  a  trial  for  murder,  where  e\'idence  waa  given  by  the  resi)ondenis  that 
the  homicide  was  committed  by  theresi)ond(!utiu  resisting  an  utterly  unjus- 
tifiable and  illegal  arrest,  attempted  l)y  the  dtK-eafled  wlio  wiw  a  i)olic(  luau, 
it  Wiis  held  that  the  ort'ense  wu«  no  more  than  nutnslaughter,  anil  tluit  the 
court  erred  in  excluding  tliis  evidence  from  tlie  consideration  of  the  .jury. 
HaJl'eiig  k.  People,  287 

9.  Warrant  signed  in  blank. 

A  wanant  si{.rned  by  a  nnigistrate  in  blank  and  afterwards  fdit>d  up  by  a  |io- 
lice  sergeant  with  whom  it  had  been  left  has,  altiiougii  regular  on  its  face, 
no  legal  force  or  validity  whatever,  but  is  an  absolute  nullity;  and  if  an  of- 
ficer IS  killed  in  attempting  to  maktj  any  arrest  under  it,  tlie  ott'ense  is  but 
maiK<lau{;hter.    Scutt,  J.  dissenting.  Ibid. 

10.  Manslaughter. 

It  is  not  necessary  that  respondent  should  Im  without  fault  in  order  to  reduce 
the  killing  of  decea.sed  oy  a  blow  of  the  fist  in  a  sudden  quarrel  to  man- 
slaughter.   Cojfman  v.  Commonwealth,  2'J3 

11.  Provocation. 

Where  the  prisoner,  who  lived  with  his  sister,  a  married  woman,  went  home 
late  at  night  and,  heiiriufj  a  noise  in  his  sister's  room,  Ijecaua;  suspicious  that 
somethuig  wrong  wius  gomg  on;  and,  afU^r  list(;ning  awhile,  becoming  con- 
vinced that  his  suspicious  were  well  founded,  took  out  his  knife  luid  ojK'ned 
it,  broke  open  the  door,  and  found  his  sister  in  the  nwm  in  her  night  dress, 
and  deceased  in  the  bi'd,  and,  being  ^'atly  enraged,  killed  the  adult<.'rer, 
it  was  held,  as  a  unitt(n-of  law,  that  this  wa.s  not  such  provocation  aa  reduced 
tlie  killing  to  nuinslaughter.    Lynch  r.  Commonwealtn,  ^H 


INDEX. 


695 


J  liiin  to  fjo. 
fcl  liim  witli 
Moly  puUiMl 
I  tt'rius  witli 
lilt  evidt'nco 
Ibid. 


11  loiult'd  liy 

ptioiiul.  iiiili 

contrary, 

the  ciiusc, 

1  k'fis  criiii(\ 

|ioii  sire  not 
nvX  tl('j»Tt'o 
Ibid. 


Iliiifr,  of  an 
»ioiiicc(il/h, 

IS  used,  but 
atli,  the  of- 
unliiwful 
fiiuscdi'atli 
ivolving  all 
270 


idtnits  tliat 
U'rly  unjiis- 
l)oIia'iiiaii, 
nd  tliiit  tliii 
f  tho  jury. 


ip  l)y  a  jio- 
on  it.s  laci", 
id  if  an  of- 
on.sL'  is  liiit 
Ibid. 


to  reduce 
1  to  nian- 

2ti;j 


;<'nt  home 
icious  tliat 
iiin^'  con- 
id  oiK'iicd 
Kht  dress, 
a(hilt<'rer, 
wreduct!(l 
2^3 


12.  Same. 

It  seems  that  seeing  a  married  sister  in  the  act  of  adultery  is  not  such  provoca- 
tion as  to  reduce  the  killing  of  the  adulterer  to  manslaughter.  Ibid. 

13.  Same. 

It  is  error  to  charge  a  jury  on  a  trial  for  murder  that  "  to  reduce  a  homicide 
uiwn  provocation,  it  is  essential  that  the  fatal  blow  shall  have  been  given 
immediatehf  upon  the  provowition  given;  for  if  there  be  time  sutticient  for  the 

Sassion  to  subside,  and  the  person  provoked  kill  the  other,  tliis  will  be  mur- 
er  and  not  manslaughter."    Feryuson  c.  State,  582 

14.  Self  defense. 

One  who  seeks  and  brings  on  a  difficulty  cannot  shield  himself  under  the  plea 
of  self-def'  use,  however  imminent  the  danger  m  which  he  finds  iiimselr  in 
the  progress  of  an  atthiy.    State  v.  Underwood,  Sal 

15.  Same. 

It  seems  that  if  rcsirondent  agreed  to  fight  and  did  fight  the  deceased,  and  wliile 
fighting,  something  occurred  to  create  a  reasonable  belief  hi  the  responden- 
tliat  lie  was  then  in  danger  of  death  of  great  bodily  harm  from  deceased, 
and  if  respondent  then  on  account  of  such  fear  killed  deceased  with  a  knife, 
it  is  homicide  hi  self-defense,  und  excusable,    lierry  v.  Commonwealth,  272 

IG.  Same. 

In  order  to  excuse  a  homicide  on  the  gi-ound  of  self-defense,  it  is  not  necessaiy 
that  tiiere  should  Ihj  immediate  impending  danger.  If  the  respondent  be- 
lieved, and  had  reasonable  ground  to  believe,  that  there  was  inimeiliate  im- 
pending danger,  and  he  had  no  other  apparent  and  safe  means  of  escape, 
he  had  a  right  to  strike,  although  in  fa*;t  there  was  no  danger.  Coffmaa 
V.  Commonwealth,  2'J3 

17.  Violence  in  mainiaininq  rights  of  properti/. 

On  a  trial  for  homicide  it  appeared  that  at  the  time  of  the  killing,  the  deceiused 
was  engaged  in  moving  a  line  fence  between  himself  and  resiiondent.  It 
appeared  also  that  the  fence  had  been  built  by  and  belonged  to  deceased, 
but  that  it  had  been  built  on  respondent's  land :  Held,  that  respondent  had 
no  right  to  resort  to  violence  to  prevent  deceased  from  removing  the  fence, 
and  tiiat  evidence  m  to  the  respective  rights  of  the  piurties  to  keep  the  fence 
where  it  was  wius  in-elevant  and  imulmissible.    State  l:  Underwood,        2oL 

18.  Death  from  surgical  operation. 

Tn  ca.ses  of  homicide,  if  an  opi.-ration  is  perfoniied  on  the  deceased,  such  as  an 
ordinarily  jirudent  and  skilful  surgeon  to  be  procured  in  the  neighborhood 
would  deem  necessary,  and  such  operation  is  performtHl  with  ordinary  skill, 
the  respondent  is  rwponsible  for  the  death,  altliough  the  operation  and  not 
the  wound  made  by  him  caused  the  death.    Coffman  i:  Commonwealth,  293 

19.  In  cases  of  homicide,  if  an  opi'ration  is  performed  on  the  deceased  such  as  would 

not  be  deemed  necessary  by  such  ordinarily  prudent  and  skilful  surgeon  as 
cim  be  pmcured  in  the  neigliborhood,  or  if  it  would  have  been  deenieu  neces- 
sary but  wa*  not  peiiormed  with  ordinary  skill,  and  deatli  results  from  the 
openition  and  not  from  the  injuries  inllicted  by  the  rospondent,  the  respond- 
ent ought  to  lie  acciuitted,  even  though  the  hijuries  uiHicted  by  him  might 
eventually  have  proved  fatal.  Ibid. 

20.  Corpus  delicti. 

On  a  trial  for  murder,  it  appeared  tliat  a  skeleton  hadb;\m  found  coiTesponding 
in  sex.  size  and  riu:e  with  the  man  whom  resiwndent  was  charged  with  kill- 
ing: //('/(/,  that  this  was  sullicieiu  direct  e\-idence  of  a  corpus  delicti,  and 
sufficiently  laid  the  foundation  for  proving  the  skeleton  to  be  tliat  of  the  mur- 
deanl  man  by  circumstantial  evidence.    McCulloeh  v.  State, 


696 


INDEX. 


(4\i 


I 


21.  Dying  declarations. 

On  a  trial  for  murder,  dyinj,'  declanvtiona  of  tlio  decoased  shoiild  Iw  rostrictod 
to  the  act  of  killin^if  and  the  circumstances  immediatc!ly  attendin^f  it,  and 
forminj,'  part  of  the  ren  genlir,  and  it  iu  error  to  allow  them  t«  be  jfivcu  in 
t'vidence  an  to  distinct  transactions  from  wiiich  the  jury  may  infer  malice  on 
the  pait  of  the  respondent  toward  the  deceased.    Leibir  e.  Coniinonuivltli, 

22.  Same. 

On  tl;e  trial  of  resi)ondont  for  manslau^jrhter  in  attempting  to  procure  an  alior- 
tion,  it  was  held  that  an  exclamation  by  the  deceased  the  day  before  she  died, 
»'.  ('.  "Oh,  Aleck,  what  have  we  done?  1  sl'.all  die,"  was  not  admissible  a.s 
a  dying'  dcchu-ation.    I'vopk  v.  Ohnnlcatl  ^tuul  see  note,  p.  uU'J),  oUl 

23.  Admisn'ihilitu  of  photograph. 

On  a  trial  for  homi(,'ide,  a  iihotoyraph,  clearly  proven  to  be  a  iihotojrraph  of  the 
the  decea.sed,  was  shown  to  a  witness,  wlio  testified,  under  objection,  that  it 
resembled  tiie  body  found  suppost'd  to  be  that  of  the  deceased.  No  evi- 
dence was  yiven  that  the  i)hotojjrrapli  wa.s  a  pood  pictm-e,  or  as  to  its  resom- 
blance  to  the  deceased.  Ihe  evidence  wa.s  held  properly  admitted.  Uililir- 
zookr.  Commonivmlth,  'i\\ 

24.  Photogra))h. 

Courts  will  take  judicial  cognizance  that  photogiiiphy  produces  convit  like 
nessi's,  the  i)roduction  of  the  photoyiuph  '  ■■ - — '  '"  *'■■  " '■- 


of  natural  laws. 


beiiiy  governed  by  the  operation 

liul. 


25.  Eriilenee  of  habit  as  proof  of  identitg. 

For  the  purjiose  of  identifying  dece;usL'd  with  one,  who  at  one  time  went  under 
a  ditlereiit  name,  it  is  j)roi>er  to  prove  that  both  were  in  the  habit  of  becom- 
ing intoxicated.    Personal  habits  are  means  of  identification.  Ibid. 

2G.  Eridence  of  mot  ire. 
On  a  trial  for  felonious  homicide,  any  evidence  te.nding  to  show  that  the  respond- 
ent was  jealous  of  the  decease<l  is  admissible  as  tending  to  show  a  motive. 
McCne  v.  Commonwealth,  208 

27.  Eridence  of  relation  of  prisoner  and  deceased. 

On  a  trial  for  homicide,  it  is  jiroper  to  prove  tl.c  relations  in  which  the  deceased 
and  accused  lived  with  one  another.     U'ellar  v.  State,  278 

28.  EiifUnce. 

On  a  trial  for  homicide,  it  is  proper  to  prove  the  respective  strcngth  of  the  jiar- 
ties,  Ijut  not  by  evidence  of  s^Mjcific  acts.  Ibid, 

29.  Some. 

On  the  trial  of  a  prosecution  for  manslaughter  in  attempting  to  procure  an 
al)ortion,  it  is  competent  to  prove  any  facts  tending  to  show  of  what  the 
deceased  died.    I'topie  v.  Ohnstvad,  301 

30.  ErpeH. 

It  is  not  proper  to  admit  the  opinion  of  a  witness  fji^  to  what  a  person  died  of, 
without  showing  in  the  first  pliu'e  that  the  witness  had  made  a  sufficient 
examination  of  the  deceiused,  luid  had  auch  knowledgo  or  experience  a.s  would 
qualify  her  to  give  an  opinion.  Ibid. 

31.  Evidence  of  motire. 

Ou  a  prosecution  fir  murder,  evidence  that  the  resjionder  t's  wife  being  dead, 
he  eohivbit.'v.l  illicitly  with  a  step-daughter,  and  was  i'nxious  to  many  her, 
and  that  deceased  had  taken  the  stei)-daughter  to  his  hrus(!  and  refused  to 
give  lii'r  up.  and  that  decea.sed  had  f.'ontestcd  in  a  hu'--  is  cortnis  case  the 
right  of  respondent  to  get  the  st^'p-daughttir  and  ot'iet-  step-children  Ixick 
to  hiu  house,  i«  admisBiole  as  tending  to  bliow  a  motive.  Frazer  j.\  State,  315 


INDEX. 


m 


32.  On  a  trial  for  murder,  any  evidence  which  tends  to  show  a  motive  ia  material 

and  admisaiblc.  Ibid. 

33.  On  a  trial  of  respondent  for  murdering  a  man  who  had  broken  up  illicit  inh^r- 

courtie  between  respondent  and  his  Htep-dau^fhter,  and  continued  to  prevent 
Kuch  intercourae,  letters  of  respondent  sliowinjr  jn'i^it  anxiety  to  get  posses- 
bion  of  tlie  step-daughter's  person  are  admiBsiule  as  tending  to  show  motive. 

Ibid. 

34.  Kridcnce,  declandion/i  of  deceased  admissible  as  res  gesUe, 

On  a  trial  for  murder,  where  it  had  appeannl  that  the  deceased  had  gone  to  find 
ti>e  resijondent,  and  anned  himself  with  a  revolver  and  a  knifi',  saying  that 
he  intended  to  have  a  settlement  with  tiie  respondent,  and  that  when  the 
respondent  came  up,  the  deceased  spoke  to  him,  and  the  two  walked  otl"  to- 
getlier  an(l  shortly  afterwards  the  n.'port  of  a  pistol  was  heard,  but  there 
was  no  evidenct!  of  the  circumstances  immediately  preceding  the  killing, 
iifti'r  the  two  walked  away  together:  It  was  held,  that  the  respondent  liad 
a  right  to  prove  that  the  diseased  had  said  when  starting  to  find  him,  that 
Ik,' Wius  going  to  kill  him,  and  used  these  words:  "When  you  hear  from 
me,  you  will  hear  that  him  or  me  is  death"  Such  declarations  are  admissiblo 
under  the  circumstances,  as  a  part  of  the  res  yestw.    Burns  v.  State,      323 

35.  Threats  hi/  deceased. 

On  a  trial  for  nmrder,  threais  made  by  the  deceased  agauist  the  respondent, 
wliich  are  not  admissible  as  part  of  the  res  (/esfw,  and  wliieh  were  not  com- 
nuinicated  to  the  respondent,  are  inadmiBsiblc  in  liis  behalf.  Ibid, 

36.  lieputatio)!  of  deceased. 

On  a  trial  for  felonious  homicide,  where  the  defense  is  that  the  killing  was  done 
in  self  defense,  it  is  competent  tx)  prove  the  general  character  of  the  deoeaucd 
for  violenee,  and  his  habit  of  carrjnng  arms,  where  such  evidence  will  tend 
to  explain  the  iutions  or  conduct  of  the  deceased  at  the  time  of  the  kiUing, 
and  tlie  intent  of  the  respondent.    Ilorbach  v.  State  (imd  see  note,  p.  34lT), 

3:30 

37.  On  a  trial  for  felonious  homicide,  evidence  of  the  general  reputation  of  the  de- 

ceased for  violence,  or  of  his  habit  of  caiTj^ing  dangerous  weapons,  is  not 
admissible  mitil  some  actH  or  conduct  on  the  part  of  the  dea^ased  at  the  time 
of  the  killing  have  been  proved,  which  such  evidence  will  tend  to  illustrate 
or  explain.  Ibid. 

38.  Where  then*  was  evidence  tliat  at  tJie  time  of  the  killing,  the  deceased  groeely 

insult^'d  the  res|iondent  a  number  of  times  without  luiy  prova^ation,  anil 
that  wl'.en  resiwndent  asked  him  what  he  meant,  he  put  his  hand  behind 
him  as  if  to  draw  a  pistol,  when  respondent  shot  him,  it  wiis  held  admissible 
to  prove  tlh!  general  ch.aracter  of  tlie  deceiieed  for  viol  nee,  and  that  he  was 
in  the  habit  of  carryuig  weaix)ns.  Ibid. 

39.  Circumst^intial  evidence. 

In  this  ciUR',  the  evidence  is  held  sufficient  to  warrant  the  verdict  of  guilty. 
Frazer  i'.  State,  315 

40.  Datif  of  prosecution  as  to  calling  witnesses. 

In  cases  of  homicide,  it  is  the  duty  of  the  prosecution,  ordinarily,  to  call  and 
examine,  on  behalf  of  the  people,  all  those  witnesses  who  were  present  at 
the  tranniu'tion,  or  who  can  give  ilirect  evidence  on  anv  material  urimch  of 
it,  wlii'ther  such  witnesses  be  favorable  or  mifavorable  to  the  prosecution. 
Wellar  ; .  People,  276 

41.  Duidieitg. 

On  a  denmrrer  for  duplicity  to  an  indictment  for  murder,  containing  but  one 
rx)unt,  cliarging  the  murder  of  three  jiersons,  it  was  held  that  the  count  was 
bail  as  charging  three  offenses.    People  r.  Alibez,  344 

42.  Killing  of  several. 

The  murder  cf  three  persons  constitutee  necessarily  three  offenses.  (But  see 
note,  p.  346.)  Ibid. 


I 


ii 


JJ 


698 


INDEX. 


48.  Pleadiitfi  under  criminal  statute. 

The  rospoiulcnt  cannot  bo  conucted  of  htatutory  man«lanKht«r,  in  attyniptiiiff 

to  imx-nro  iin  abortion,  on  an  infonnation,  charging  liini  niinply  with  nuiii- 

Bhiuffht^-r,  wbirh  iloi'H  not  reoite  the  fuctu  wliich  constitute  the  crime  umlcr 

tlio  statute,   i'cojtle  v,  Olinstvad,  iiUl 


HOUSE  OF  ILL  FAME. 

1.  Plead iny. 

In  an  infonnation  for  lettinpf  a  house  for  the  purpose  of  prostitution,  the  stat^^- 
nu'jit  of  the  locaUty  of  the  house  n<>eil  not  be  more  precise  than  in  inforiiiii- 
tions  for  burglary  or  arjson.    Saundors  i:  People,  o4G 

2.  Evidence. 

In  a  prosecution  for  U'ttiny  a  hou^ic  for  the  nurpose  of  prostitution,  it  is  lul- 
missible  to  prove  the  reputation  of  the  leasee,  aiul  of  the  jfirla  who  were 
seen  in  the  house.  Ibid. 

3.  Same. 

Testimony  whicli  shows  that  the  lessee  of  a  house  and  women  who  had  boon 
seen  in  tlie  house  were  reput^-'d  prostitutes  is  not,  of  itself,  sulKcient  to  ts- 
tabhsh  tlio  fact  tliat  the  house  is  kept  or  used  us  a  house  of  prostitution. 

Ibid. 

4.  Same. 

Evidence  of  the  fjeneral  reputation  of  a  house  is  admissible  for  the  purjiose  of 
establishinff  its  chariictcr  as  a  house  of  prostitution.  Whether  such  vi- 
denct'  is  sufficient  standmy  alone  to  sustaiii  a  conviction,  qiuere.  t>.,l- 
tester  v.  State,  'S.')0 

5.  Evidence  of  reputation. 

Under  a  statute  makinj»  the  keepinp  of  a  house  of  ill  fame  resorted  to  for  lewd- 
ness a  common  nuisance,  "house  of  ill  fame"  iiiMuns  the  sane  thin^,' us 
"  bawdy  house."  And  the  {fist  of  the  otfense  beiiifj  the  use  of  the  house  for 
lewd  purposes,  and  no*,  ito  r''i)utation,  evidence  of  the  reputation  of  tlie 
house  IS  not  admissible.    State  v.  JJoardman,  o51 

6.  Evidence. 

In  a  prosecution  for  keepinjf  a  house  of  ill  fame,  evidence  of  the  reputation  of 
the  women  who  fre(pi('nt  the  house,  luid  the  chiu'iicter  of  their  acts  ami  con- 
versation in  and  alwut  tlie  house,  is  competent.  Ibid. 

7.  In  a  prosecution  for  keepini»  a  house  of  ill  fame,  Uie  house  must  bo  proved 

to  be  a  house  of  ill  fame  by  facts,  and  not  by  fiune.  Ibid, 


HUSBAND  AND  WIFE. 

1.  A  husband  may  l)e  criminally  punished  for  illegal  sales  of  liquor  made  by  his 

wife  in  his  presence  and  with  his  knowledge,    llenshf  r.  State,  40") 

2.  On  tJie  trial  of  a  liusV)and  for  an  illetral  sale  of  liquor  by  the  wife  in  liLs  pii>H- 

cnce  and  with  his  knowledgi',  evidence  of  former  sales  by  the  wife  in  his 
presence  is  admissible  to  illustiute  the  character  of  tho  s*ue  ui  the  caut;  on 
trial.  Jbid. 


IGNORANCE  OF  THE  LAW. 

Ignr.imce  of  the  law  is  no  excuse  for  aime.    To  constitute  a  cricce  there  must 
be  a  criminal  mtent,  but  when  an  act  is  unlawful  an  uiteiit  to  do  tliat  act, 


INDEX. 


6))9 


faavin^r  a  full  knowledge  of  tho  facta  is  a  criminal  intent  without  regard  to 
tho  party's  kuowluclgu  of  the  law  or  that  the  act  is  unlawful,  btate  v, 
Uooavnow,  tf 

ILLEGAL  ARREST. 
Sco  Homicide. 


IMPEACHMENT  OF  WITNESS, 
See  Witness. 

INCEST. 

1.  Ivdicimfnt. 

Under  the  statuto  of  Indiana  against  incest  between  step-son  and  step-mother, 
each  nnist  have  knowledge  of  the  relationship,  and  an  indictment  against 
tiie  st<'p-son  wiiicli  does  not  allege  that  the  step-niotlier  knew  of  the  rela- 
tionship is  bud  on  a  motion  to  quash.    Jiuttmer  v.  State,  <J54 

2.  Acquittal  of  one. 

Incest  is  a  joint  offense,  and  if  one  of  the  parties  has  been  tried  and  acquitted, 
this  fact,  if  plea<led,  is  a  bar  to  the  prosecution  of  tho  other  party  for  the 
same  oti'ense.  Ibid. 


INDICTMENT. 

1.  It  is  sufficient  to  charge  an  offense  in  the  words  of  the  act  creating  the  offense, 

when  the  cluu-ge  nuule  in  tliat  form  fully  informs  the  defendant  of  tho  na- 
ture of  tlie  otlense  charged  against  liim.    Cear/oss  v.  State,  460 

2.  Criminal  ptetidiiKj. 

The  averment*)  m  criminal  pleadings  should  be  definite,  clear  nnd  distinct. 
Kellur  v.  State, 


211 


Time. 


Time  in  an  hifonnation,  where  it  is  not  matter  of  description,  is  immaterial 
and  need  not  Ije  proved  as  laid.    Saunders  v.  I'cople,  5J46 

4.  Joinder  of  joint  and  several  counts  in  same  indictment. 

On  the  sepanito  trial  of  one  defendant  on  an  information,  some  counts  of  which 
charged  him  jointly  with  the  oiliera,  and  some  of  which  do  not  charge  the 
offense  jointly  against  all,  the  jury  should  not  be  iillowed  to  consider  any 
counts  in  wiiicli  all  are  not  jointly  charged.    Hamilton  v.  People,  618 

5.  Motion  to  qiuish. 

A  motion  to  ouhaIi  a  whole  information  because  it  contains  some  objectionable 
counts,  will  not  prevail  where  there  are  some  counts  to  which  there  is  no 
legal  objection.    The  motion  to  quash  should  specify  the  bad  counts.    Ibid. 

6.  A  motion  to  quash  an  infonnation  on  the  ground  of  misjoinder  counts  is  ad- 

dressed to  the  discretion  of  the  court,  and  is  not  reviewable  on  writ  of 
error.  Ibid. 

7.  Conclusion  ofiudictment. 

Where  an  offense  is  made  of  a  higher  nature  by  statute  than  it  is  at  common 
law,  the  indictment  nmst  conclude  against  the  statute,  but  where  the  pun- 
ishment is  the  same,  or  less,  it  need  not  so  conclude.  State  v.  McDonald,    368 

See  Adulteuy.    Assault  with  Intent  to  Commit  Rape.     False  Pue- 

TEN8E8.      FoUOEltY.      GaMINO.      Ho.MICIDE.      InCEST.      LiQUOK  SeLLING. 

Peiuuky. 


■i 


700 


INDEX. 


INSANITY. 

1.  Proof  of  hismiiti/. 

VVhoro  inNiinify  is  n'lied  on  or  a  (IcfcnRi^  fo  a  criminal  clmi-KO,  the  luiidcn  of 
imiot'  IK  on  tliti  reii|)on(lpnt  to  t'MtabliHh  hin  inHanity  at  tin'  tinio  of  the  mt; 
Imt  Hiuh  insanity  may  l»t>  CHtahliHhtMl  by  a  prcnonucranci'  of  t^'stinioiiy  uiui 
is  not  rt-quired  to  be  proved  beyond  a  reaaonable  doubt.    I'lupk  v,  W'ilsi,,), 

2.  Same. 

WluTt'  insanity  is  roliod  on  as  a  defenso  to  a  cliarfff  of  ninrder,  tlu^  defendant 
must  siitiHty  the  jury  that  he  wiw  insane  at  the  time  of  the  kdlinjf,  A  doiilif, 
ns  to  his  sanity  is  not  suflicicnt.    Lynch  v.  Commonwinlth,  'Js:j 

3.  Doiiht  of  sdiiiti/. 

A  charjife  that  "  if  the  jni-y  have  a  rcmonable  donbt  of  the  Ranit>  of  the  pris- 
oner at  the  time  of  the  killiiiti:,  they  cannot  convict"  is  properly  refi  1. 
Oiiurin  v.  CommonweaUh, 

4.  Proof  of  insauitt/. 

To  justify  an  acquittal,  in  cnsea  of  homicide,  on  the  ground  of  insanity,  the  evi- 
dence must  be  sutlicient  to  satisfy  tlie  minds  of  the  jury  that  the  respond- 
ent was  insane  at  the  time  of  tlio' killinjf.    A  doubt  is  not  tfutHcient.     Ibid, 

5.  Evhlence. 

Evidence  that  the  rcsjwndont  was  insane  "on  the  niprlitof  the  third  or  tho 
moniinff  of  the  fourtii  of  January,"  when  this  is  all  the  evidence  thiit  he  wius 
ever  insane,  and  where  there  had  Iwen  evidence  that  he  wjis  never  insane, 
has  no  tendency  to  prove  that  ho  was  insane  on  the  mornintf  o'  the  second 
of  January.    Sullivan  v.  People,  fiVJ 


INTENT. 

See  Adultekt.    Assavlt  with  Intent  to  Kiix  and  MunnKU.    Huuoi.arv. 
Evidence.    Ionokance  op  the  Law.    Laucknv. 


JUDGE. 

Difiquallfcation  of  judge  hy  relationship. 
A  judge  who  is  related  to  the  prosecutor  by  marrinsrp  is  not  incompetent  to  sit 
on  the  trial  of  a  criminal  case.    He  is  not  related  to  a  party,     ycwmaii  r. 
State,  1V3 

JURISDICTION. 

Jurisdiction  of  acts  in  another  state. 

Whether  a  pi'rson  who  in  another  state  becomes  accessory  before  the  fiict  to  a 
felony  committed  in  Kansas  ciin  be  p\mished  under  the  Kansas  statutes, 
having  done  himself  no  act  within  tlic  stiite,  quiere.    State  r.  Cassady,  507 


JURY. 

1.  Jury  of  thirteen. 

Where,  by  mist.nko,  thirteen  jurors  are  impaneled  and  render  a  verdict,  tho 
verdict  will  be  set  aside.  //  HeemH  that,  if  tlie  last  juror  sworn  on  a  jury  of 
thirteen  could  be  pointed  out  before  the  jury  retired,  he  might  be  dismissed 
and  the  trial  proceed.    Dullard  c.  State,  bll 


INDEX. 


701 


2.  •/«>•»/  to  take  hw  frotn  the  rnurt. 

On  the  triiil  of  a  criniiniil  am;  the  juiy  arc  not  judpos  of  the  lfi«-,  hut  it  Is  tho 
thity  (if  the  jury  to  accept  and  act  upon  tlie  law  ao  given  them  by  tho  court. 
Hamilton  e.  People ,  ^8^ 

8.    VoUiWi/  JHI'IJ. 

In  a  criminal  cast>  the  respondent  hw  a  le^'al  riiifht  to  poll  the  juiy  at  the  proper 
time,  and  it  in  not  within  tiie  diwretio'naiy  power  of  tho  coiu't  to  refuse  it. 
Tiie  iiropcr  time  to  p<jll  tiie  jury  is  afti'r  the  verdict  has  lieen  announced. 
Tillim  V.  suite,  564 


th# 

alio 


4.  rereinpton/  ehiiUetifie. 

Under  the  htutute  in  Texiw,  after  a  juror  has  been  accepted  and  impaneled,  th 
ritflit  of  peremptory  ciuillenuro  is  yone.      Jlorbach  v.  State, 

b.  ExaminalUm  of  juror  on  voir  dire. 

On  a  trial  for  an  unlawful  nale  of  intoxicating  lifjuor,  tho  respondent  has  a 
riylit  to  ask  tiie  jurors  on  tiieir  roir  dire,  to  cnaliie  him  to  excivise  h'-.  right 
or  perempt<iry  cnallenire,  whether  tiit^y  are  memhera  of  a  temperance  soci- 
ety or  Inive  contriliuted  money  in  aiil  of  honor  presecutions.  Laein  i\  Fee 
pie,  578 

6.  Alloa'iiif/ doeiiineidar;/  erideiiee  in  j urn  room. 

Tiiere  is  no  error  in  allowinif  injury  to  t^ike  documents  to  the  jmy  room,  where 
they  havi'  been  admitted  in  evidence  anil  exhibited  to  the  jury  during  the 
trial.     Udderzook  v.  Com.,  3U 

7.  Stranijers  in  jury  room. 

After  the  jury  had  retired,  two  witnesses  necessarily  passed  throngh  the 
jmy  r(H)m  to  get  down  stairs,  but  without  any  communication  \vith  the  jury: 
Held,  no  grounil  tor  setting  aside  the  verdict.    State  v.  Underwood,         2al 

8.  Ajjidarits  of  jurors  to  sustain  verdict. 

The  atfidavits  of  jurors  are  receivable  in  support  of  their  verdict  to  show  that 
nothing  improper  occurred  during  their  consultation.  Ibid. 


See  Constitutional  Law. 


LARCENY. 

1.  What  is  hrcenij. 

An  officer  of  a  bank  with  which  a  note  of  the  defendant  had  been  left  for  collec- 
tion called  on  tho  defendant  with  tho  note  for  i)ayment.  The  defendant 
asked  to  be  allowed  to  see  the  note,  and  on  its  being  handed  to  him,  walked 
out  of  the  room  with  it,  and  secreted  or  destroyed  it.  In  a  prosecution 
against  him  for  theft,  it  was  held,  on  a  motion  of  the  defendant  for  a  new 
trial,  that  the  court  below  properljr  charged  the  jury  that  if  tho  defendant 
obtained  possession  of  the  note  wth  a  felonious  intent,  the  act  waa  theft. 
State  r.  Fenn  (and  see  notes,  pp.  ^94,  403),  378 

2.  Felonious  intent. 

Also  that  the  court  properly-  charged  that  the  intent  to  deprive  the  owner  of 
his  proi)erty,  and  to  gam  some  advantage  to  himself,  constituted  a  felo- 
nious intent.  Ibid. 

3.  Taking. 

Tlie  "  talking  "  in  theft  need  not  necessarily  be  secret,  and  without  the  knowl- 
edge of  uie  owner,  but  may  be  done  openly,  by  deception,  artifice.  £i*aud  or 
force.  Ibid, 


rm 


INDEX. 


r 


4.  Animus  fumndi. 

Fraudulently  taking  the  personal  property  of  another  without  his  consent,  with 
ft  felonious  inttnit  to  deprive  him  wholly  of  his  property,  altho\i;,'h  the  taker 
designs,  himself,  to  make  but  a  teniiKmiiy  use  of  the  property,  is  suHiiient 
evidence  of  the  felonious  intent  required  to  constitute  the  crime  of  larceny. 
State  V.  Doris,  39^ 

5.  Consent  of  owner. 

Where  the  evidence  was  that  the  owner  of  property,  being  iiiformod  bv  liis 
iigent  who  had  charge  of  tiio  pro|)erty,  that  respondent  wanted  tlie  agent  to 
join  him,  resimndent,  in  stealing  it,  and  thereupon  tlie  owner  told  tiie  agent 
to  let  the  respondent  take  it.  and  in  pursuance  of  this  arrangement,  tlie  re- 
siwndent  came  at  night  and  the  agent  let  him  have  the  pioperty,  and  re- 
spondent  started  otf  with  it,  it  was  held  that  there  was  no  larceny.  M'lV- 
litons  r.  State,  41;; 

6.  Although  the  owner  of  pmperty  may  leave  it  exposed  for  the  express  purpose  of 

tmxpping  one  whom  he  expect*  to  steal  it;  yet,  if  he,  through  an  agent,  incite 
a  pei-son  to  take  it,  the  taking  is  no  larceny,  for  it  is  by  his  own  consent  and 
procurement.  yt;,/_ 

7.  Ijarcenif  hij  bailee. 

An  indictment  for  larceny  by  a  bailee  must  state  the  bailment  accurately,  and 
if  it  does  not,  there  will  be  a  fatal  variance.    Carter  v.  Siate,  440 

8.  Simple  larceny.    Larceny  from  the  person. 

Simple  larceny  and  larceny  from  the  pei*son  are  distinct  offenses,  and  where 
simple  larceny  is  a  greater  criint;  than  larceny  from  the  pei-son  (as  it  is  on 
the  facts  of  this  case),  tht!  respondent  cannot  be  convicted  of  a  simple  liureiiv 
on  evidence  which  establishes  u  larceny  fi-om  tlie  perwn.  jKiny  i:  State,    4'_'(> 

9.  Property  outside  of  store. 

Stealing  property  hanging  at  and  outside  of  a  store  door  is  but  simple  larceny, 
and  is  not  larceny  irom  a  house.    Martinez  r.  State,  4}o 

10.  Larceny  from  house. 

Where  a  bale  of  cotton  was  stolen  from  an  alley  way  outside  of  a  Wofclmuse 
and  not  in  a  warehouse,  it  was  held  that  the  defendant  was  guilty  only  of 
simple  larceny.    Middlelon  r.  State,  "       '4-jj 

11.  A  charge  that  "  if  the  bale  of  cotton  wa.s  in  front  of  the  warehouse,  and  innler 

its  control  and  protection,  stealing  it  is  the  same  offense  as  if  the  Ijale  of  cdt- 
ton  were  iRtually  within  the  wsUls  of  the  warehouse,"  is  eiror.  Ibid. 

12.  Asportation. 

On  a  trial  for  hirceny  from  the  riei-son.  it  ajiiViired  that  respondent  put  his 
hand  into  the  prosecutor's  i)Ocket  iuid  t<K)Khis  jiocketlMXik  in  his  liaaid,  drew 
it  Jialf  way  out  of  the  i)Ocket,  when,  being  discovered,  he  let  it  go  and  ran 
off.  Held,  a  sufficient  asi>ortation,  and  that  resi)ondeiit  was  guilty  nf 
larceny.    Flynn  v.  State,  '424 

13.  Tiirowing  goods  off  a  railway  train  in  motion,  with  a  felonious  intent  to  pp- 

propriate  them,  is  larceny.    Price  r.  State,  4'2'J 

14.  Larceny  hy  finder  of  lost  ijoods. 

If  the  finder  of  lost  gocMls.  at  the  time  of  taking  them  into  his  j)osseesion, 
knows,  or  has  thi.'  reasonable  means  of  ki'owing  or  ascertaining,  who  the 
owner  is.  but  intends  at  the  time  to  appro()ii;>ie  them  to  his  own  use.  and 
deprive  the  owni-r  of  them,  he  may  Iw  found  guilty  of  huxeny.  Comwon- 
tiealth  r.  Titut  (and  see  note,  p.  41X),  410 

15.  If  the  finder  of  lost  goods  has  no  felonious  intent  at  the  time  of  taking  them 

into  his  iMissession,  a  subsequent  conversion  of  them  to  his  own  use  will  not 
constitute  larceny.  Ibid 


'f?:'f?     W' 


INDEX. 


703 


ii 

I, 


16.  Efidence. 

On  a  prosecution  for  stealing  a  horse  and  carriage,  evidence  that  respondent,  ii 
young  man,  uiissing  along  the  street  late  at  night,  seeing  the  horse  and 
carnage  standing  in  front  of  the  owner's  house,  got  in  and  drove  off,  and 
that  the  home  and  caiTiage  were  found  abandoned  in  the  road  next  day  aev- 
end  miles  from  where  they  were  taken,  the  horse  much  exhausted  from 
driving,  and  tluit  respondent  gave  no  notice  to  the  owner  or  to  any  one 
where  thoy  might  bi'  found,  is  sufficient  to  sustain  a  verdict  of  guilty.  State 
t".  Dae  is,  oDsi 

17.  Efidence  of  oiniership. 

Tlie  note  was  payable  to  W.  or  order,  and  was  by  W.  indorsed  to  H.,  and  by  H. 
indorsed  in  blank,  and  it  had  been  left  by  11.  at  a  bank  for  collection.  The 
information  described  tlie  note  as  the  property  of  H.  Held  that  the  fact  of 
its  being  indorsed  by  H.  did  not  necessarily  show  that  H,  was  not  still  the 
owner,  and  that  the  judge  below,  after  instructing  the  jury  that  the  note 
must  have  been  delivered  by  W.  to  H.  properly  left  it  to  them  to  say  from  all 
the  evidence,  whether  W.  haddeUvered  the  note  to  II.,  and  whether  H.  was 
still  the  owner.    State  v.  Fenn,  1378 

18.  Evidence  of  value. 

And  held  that  the  judge  properly  charged  the  jury  that  the  state  was  bound  to 
prove  the  note  to  be  of  some  viUue,  but  that  they  were  not  limited  to  dkect 
evidence  on  this  point,  but  might  consider  any  evidence  fi'oui  which  the 
value  miglit  be  interred.  Ibid. 

19.  Description  of  note. 

The  note  was  des''ribed  in  the  information  as  "  a  certain  promissory  note  dated 
November  (i,  1872,  signed  by  the  defendant,  for  the  payment  to  W.  or  order, 
of  |'J,;'>UO  on  the  1st  of  May,  1872,  value  received,  a  more  full  description  of 
which  is  to  the  attorney  for  the  state  unknown."  Held  to  be  sutliciently  de- 
scribed. Ibid. 

20.  Variance. 

The  note  was  in  fact  for  $2,300  and  interest  and  all  taxes.  Held  not  to  be  a 
fatal  varianie,  i.li  tliat  is  required  being  such  substantial  accuracy  as  shall 
mak"  the  identity  of  the  nott;  unquestionable,  luid  protect  the  accused  from 
another  prosecution  'or  the  same  ott'ense.  Ibid. 

21.  And  held  that  the  defendant,  who  wrongfidly  took  the  note  and  destroyed  it, 

should  not  be  permitted  to  say  that  it  was  not  described  with  the  utmost 
particularity.  UM. 

22.  Evidence. 

On  a  trial  for  larceny  of  a  I'lO-bill,  evidence  that  the  prisoner  two  months  after- 
wards jia^itied  a  similar  l)ill,  and  asked  the  person  to  whom  he  paid  it  not  to 
tell  where  he  got  it,  is  admissible.    State  v.  Bishop,  094 

2:i.  Same. 
On  a  trial  ff)r  larceny,  evidence  that  third  persons  in  no  way  connected  with  tho 
case,  and  against  whom  there  is  no  proof,  had  opportunity  to  steal  the  money, 
is  inadmissible.  Ib'ikl. 

24.  Same. 
On  a  trial  for  larceny  of  a  $50-bill,  where  it  appeared  *''^<^  the  prisoner  had 
iKtxsed  a  similar  bill,  evidence  tending  to  show  that  he  had  no  means  but 
his  labor,  and  could  not  have  received  it  for  his  labor,  is  axlmissible.      Ibid. 


25.  Larcenif  hy  servant. 
Tlie  iirisoutM-,  being  the  agent  of  the  American  Express  Company  in  the  state 
or  Illinois,  received  a  sum  of  money  which  had  been  collected  i)y  them  for  a 
customer,  and  put  it  into  theh  safe,  but  made  no  entiy  of  its  receipt  in  their 


ii 


704 


INDEX. 


books,  as  it  was  his  duty  to  do,  and  afterwards  absconded  w-ith  it  to  Can- 
ada, where  he  was  arrested  and  tried  under  a  statute  against  the  bringing 
into  Canada  of  property  stolen  in  a  foreign  countiy.  JleUi,  tliiit  he  was 
guilty  of  larceny,  and  was  properly  convicted.    Keg.  v.  Ilennensy,         403 

26.  liccent  possession. 

A  charge  that  "  the  iiossession  of  stolen  goods  recently  after  they  are  stolon  is 
a  strong  presumption  of  guilt,"  is  not  eiTor.  I'osacssion  of  property  recently 
stolen  makes  out  a  pr'iHia  faeie  case  of  guilt,  and  throws  upon  the  defend- 
ant the  burden  of  explaining  that  possession.    State  r  Cnssadi/,  667 

27.  On  0  prosecution  for  larceny,  evidt?nce  that  the  defendant  ottered  to  settle  the 

case  by  paying  the  prosecutor  the  value  of  the  stolen  property,  and  that  he 
otfereil  the  constable  money  if  he  could  get  clear,  is  adiuissiblo  as  testiiuoiiy 
to  show  guilt.    lieij.  v.  Stan;  i^ii 

28.  The  possession  of  stolen  property,  though  not  shown  to  be  a  recent  possession, 

is  held,  in  connection  ot  other  facts  in  tliis  case,  sufficient  evidence  to  supiioit 
a  con\iction  of  larceny.  Ibid. 

29.  EJfecf  of  recent  possessio}). 

It  i-s  not  error  to  refuse  to  charge  that  "  possession  of  stolen  goods,  without  oth- 
er evidence  of  guilt,  is  not  to  be  regarded  as  presumptive  evidenci.'  of  bur- 
glary," in  a  case  where  there  was  other  evidence  of  guilt.    Vrinee  r.  State, 

645 

30.  Effect  of  possession  of  stolen  propertif. 

On  a  trial  for  burglary  and  larceny,  wiiere  evidence  was  given  that  the  respond- 
ent was  found  in  possession  of  the  watch  and  chain  stolen,  within  forty 
hours  aftt-r  the  burglary,  it  is  eiTor  to  charge  that  if  the  jur,-  believes  this 
fact,  the  law  presunii-s  that  he  is  the  thief  and  that  he  has  stol"n  the  watch 
and  chain,  and  he  is  bound  to  explain  satisfactorily  how  he  came  liy  tlie 
goods.    .S7((/('  r.  (Irares,  429 

31.  The  rule  in  North  Carolina  as  to  the  effect  of  the  possession  of  stolen  property 

is  this:  "  Wlien  goods  are  stolen,  one  found  in  jiossession  so  soon  thereaf- 
ter that  he  could  not  reasonably  have  got  tin;  possession  unless  he  had  stolen 
them  himself,  the  law  presumes  he  was  the  thief."  Hid. 

32.  Effect  of  recent  possession. 

A  charge  which  instructs  the  jury  that  proof  of  the  jiossession  of  ]Xirt  of  tho 
stolen  goods  four  months  aft«r  the  commission  of  the  crime,  no  reasoiiiiblo 
explanation  being  given  Oi  the  poss(}ssion,  shoidd  be  regarded  as  raishigii 
strong  presumption  of  guilt,  is  erroneous.    Staler.  Walker,  432 

33.  The  nde  is,  that  recent  possession  of  stolen  prop"rty,  unaccounted  for,  is  a  strong 

presumption  or  prima  facie  evii.lence  of  gudt.  Hid. 

34.  Recent  possession  question  of  fact. 

What  is  recent  possession  is  a  question  of  fact,  to  be  submitted  to  the  jurj', 
except  in  those  ciises  where  the  court,  in  favor  of  the  prisoner,  can  say,  as  a 
n-itter  of  law,  that  possession  is  not  recent.  Hid. 

35.  Effect  of  recent  possession. 

On  a  triiU  for  larceny,  tiw  only  evidence  wius,  that  respondent  was  fouivl  in  pos- 
session of  the  stolen  hoi-se  a  few  houi-s  after  it  was  stolen.  Held,  that  the 
evidence  was  not  sufHcient  to  justify  a  conviction.    I'euide  r.  Sovajea,    4:J6 

36.  On  a  trial  for  larceny,  evidence  of  the  recent  possession  cf  stolen  property  is  not 
of  itself  sutticient  to  justify  a  conviction.    Wallack  and  ilcKi.NSTUY,  J.T., 


not  expressing  iui  opmion. 


Hid. 


37.  Evidence. 
Possession  of  a  stolen  pipe  witliiu  a  week  or  ten  tlays  after  it  was  stolen,  in 


INDEX. 


705 


ith  it  to  Can- 
t  the  bringuig 
il,  tliat  he  was 
cnny,         403 


y  are  stolen  is 
Dperty  ivcently 
HI  the  ilefeiul- 


y- 


d  to  settle  tlie 
and  that  he 
M  testimony 
4:38 


■nt  possession, 
■nee  to  supjiort 
Ibid. 


!,  without  oth- 

idence  of  bur- 

riiice  r.  State, 

64.5 

t  the  rpspond- 

1,  within  forty 

lielieves  this 

"i\  tin;  watch 

came  l)y  the 

429 

itolen  iiroperiy 

soon  thcmif- 

hu  had  stolen 

Ibid. 


of  jirtrt  of  tlio 

no  reasonable 

(1  as  raisinj;  a 

432 

for,  is  a  strong 
Ibid. 


to  the  jury, 

can  say,  as  a 

Ibid. 


fourvl  in  pos- 
'l,d<l,  that  tiio 
^or«jeu,    436 

iroperty  is  not 

U.XSTUY.  .I.T., 

Ibid. 


^viis  stolen,  in 


connection  with  the  other  circumstances  in  this  case,  was  luikl  insufficient  to 
warrant  a  verdict  of  guilty.    Galloway  v.  State,  437 

38.  Effect  of  recent  possession. 

Possession  of  a  stolen  feather  bed  and  some  bed  clothes,  five  months  after  they 
were  stolen,  is  not  such  recent  possession  as  of  itself  to  raise  a  legal  pre- 
su.nption  that  the  party  in  possession  is  the  thief.  It  is  merely  a  circum- 
stance to  be  submitted  to  the  jurj-  in  connection  with  other  evidence.  Yates 
V.  State  (and  generally  as  to  the  etfect  of  recent  possession  of  stolen  prop- 
erty, in  larceny  and  kindred  ottenses,  see  note,  p.  574),  434 

39.  Evidence, 

In  a  prosecution  for  larceny,  the  evidence  must  precisely  identify  the  thing 
stolen.    It  is  not  sufficient  to  show  that  one  of  two  things  equally  valuable 


was  stolen.    State  v,  Collins, 


443 


40.  Same. 

On  a  trial  for  larceny  of  money,  evidence  that  the  person,  after  the  larceny, 
had  money,  in  no  way  identified  as  part  of  that  stolen,  is  immaterial.  State 
V,  Carter,  444 

41.  Irrelevant  evidence  in  larceny. 

In  a  prosecution  for  larceny,  it  is  not  relevant  to  prove  that  third  parties  who 
had  an  opportunity  to  commit  the  crime  were  of  bad  character,  such  thud 
parties  not  being  witnesses  or  charged  with  the  crime  or  otherwise  connected 
with  the  case.    Bennett  v.  State,  188 


LIQUOR  SELLING. 

1.  Sale  of  liquor  by  club  to  members. 

In  a  prosecution  for  selling  liquor  on  Sunday,  it  appeared  that  defendant  was 
an  officer  of  a  club  which  met  on  Sunda,ys  for  literaiy  and  social  purposes, 
and  which  was  also  a  mutual  benefit  society,  and  that  r.o  persons  but  mem- 
bei-s  were  admitted  to  tlieir  meetings;  that  lager  beer  was  purchased  with 
the  society's  moneys,  and  that  on  Sundays  the  members  who  desired  drank 
the  beer,  and  each  time  they  got  a  glass,  paid  five  cents  into  the  treasury, 
and  that  the  defendant  had  no  personal  interest  in  tlie  matter,  but  merely 
acted  as  an  officer  of  the  club :  Held,  that  tliis  was  a  sale  of  liquor  by  the 
club  to  its  iiiembei-s,  and  that  defendant  was  properly  convicted,  having 
been  the  agent  who  made  the  sale.    Marmont  v.  State,  447 

2.  Acts  of  hospitality. 

A  statute  prohibiting,  among  other  things,  the  giving  away  of  spirituous 
liquors  on  election  days  by  any  person,  is  held  to  extend  to  and  include  acts 
of  hospitaUty  in  a  private  house.    Cearfoss  v.  State,  460 

3.  liegulating  licensed  taverns. 

A  statute  gave  a  municipal  board  power  to  "  regulate"  licensed  taverns.  Under 
the  authority  of  the  statute  a  by-law  was  passed  which  provided  that  during 
the  time  in  which  the  sale  of  liquors  Wiis  proiiibited  by  the  by-law,  the  bar- 
room should  be  closed  and  unoccupied  except  by  the  members  of  the  keeper's 
family  or  his  employees,  and  should  have  no  light  except  the  natural  light 
of  day.    Held,  that  the  by-law  was  unauthorized  and  void.  Be<j.  v.  Belmont, 

457 

4.  "  Regulate  "  in  such  statute  means  regulations  in  respect  of  the  sale  of  spirit- 
uous liquors  therein,  the  hours  and  time  at  which  they  may  be  sold  or  pro- 
hibited, and  with  reference  to  the  iiccominodation  of  guests  and  in  respect 
of  gambling  therein,  and  not  allowing  disorderly  charactei-s  to  frequent  the 
premises.    The  statute  does  not  contemplate  that  the  private  and  domestic 


arrangements  of  the  family  should  be  interfered  with. 
Vol.  I. -45 


Ibid. 


'!.  "1 


.T'f 


'  A 


)  -i 


706 


INDKX. 


5.  Pcsfmimihtlit)/  of  fmphijrr  for  mlc  of  li<iiior  hij  mrvant. 
All  <>iii|il(iy)>i'  is  not.  criiiiiiiiilly  n>H|-()iiHililo  for  an  illf^il  huIo  of  liVpior  Ity  liix 
Hfi'Viuit,  niiiili'  without  \\m  knowlrilj^'or  t-oiiHcnt,  uikI  in  violation  of  iKiKitivo 
inKtiiution.s  f,'ivt'ii  by  him  in  px"!  liiith.     iMlhroiif  r.  SluW,  4(W 

G.  Crimiivil  trs/Hiiisihilil;/  of  tiniiloi/rrfor  HWiHthorizcii  art  if  nermut. 

Under  a  Hi|iior  Htatiit<>  wliicli  proliiliits  all  ^ah'Hof  li(|iiorH  by  iinliccnw'il  poi-Hons, 
an  t'lnploycr  iscriniinally  rcHpoiisihlfforall  iiiilawiiil  hiiIch  niiult'l)y  liiH  aj^enl. 
Till'  a^ciit  liaNiiolicrnsft*)  sell  to  any  oni*,  aiitl  it  is  only  hiwfiil  for  liini  to<lo 
HO  in  tlif  iiunii'  and  hy  the  aiitiiority  of  IiIh  principal,  and  ilit>  ))r*>Hiiiiiptioii 
iniiNt.  I>i>  <l(>i>ini'd  coiu'liisivi' that  till' ap'iit  or  Hi'rvant  lU^tM  witliiu  tin;  ucopo 
of  hin  aiitliority  in  niakiiij^  the  wale.    SlcCutcfifoH  v.  Slate,  471 


7.  Jhrhijut: 

A  harkt'cpi-r  is  within  thf  ini'aiiin(;  of  a  statiiti"  proliibitiiij;  any  im'i-hou  who 

I'.ci'ps  lii|iior,  fiijiu  Hi'lliii^,'  it  to  iiiiiioi-8,  wlii'tlu'r  lit;  in  owia'r  or  merely  an 
.  ...    ..      ...   .  ^^.^ 


I'ps  lll|l 

t'liiployt't'.     Miirshiill  r.  Stutf, 


8.  Krasion. 

Thf  fact  t hut  defendant,  told  jm'isoiis  to  whom  lie  Hold  liijiior  that  they  muKt 
not  drink  it  on  his  premises  is  of  no  iinixirtance,  if,  under  the  circwmstunces, 
lie  must  have  known  that  they  would  drink  it  on  tiis  on'miwH,  and  the  evi- 
dence in  this  case  is  hrM  siitticient  to  justify  the  cuncluHion  that  defendant 
was  try inj;  to  evade  the  law.     Kinfiimnn  v.  State,  4h'4 

9.  (Ill  ill  If  k'iioii\vil;/i'. 

In  a  ]iri)secution  for  an  illei;al  sale  of  liipior  to  a  minor,  it  is  immaterial  whether 
or  not  the  defendant  knew  tiiat  the  piirchii.ser  Wius  a  minor.  Wai.kkh  and 
McAi.i.iMTKU,  .1.1.,  disseiitiii|LC.     McViilchvou  v.  I'loiili;  471 

10.  (iooil faith. 

On  a  prosecution  for  selliii);  liiiunr  to  a  minor,  it  is  a  f^ooil  defense  that  the  de- 
fendant was  misled  and  ini|M>seii  on,  anil  that  he  honestly  JN'lievetl  the  minor 
to  l)e  over  a),'!'.  Itiit  the  defendant  nmst  prove  this  Uiyoiid  ii  reiwonai>le 
doiilit.      Marshall  v.  State,  4X'2 


11.  (hmil  faith  in  srllhi;/  liquor  to  minor. 

A  dru^K'i'^t  selling  liquor  to  a  minor  on  a  physician's  prescription  in  ffood  faitli, 
thai  it  is  to  he  used  for  medicinal  purpo.ses,  is  ffuilty  of  no  otl'ense.  lie  is  as 
much  shielded  hy  the  spirit  of  the  a*t  iw  if  he  were  exenipt^-d  from  the  jien- 
alty  liy  e.xincss  words.    Jiall  r.  State,  477 


12.  Same. 


'  ,l! 


A  dru^^n'st  sellin)r  liipior  to  a  minor  on  a  )iliysician's  prescription  in  ^'ood  faith 

isi'H,  is  ifuilty  of  no  otlense.     He  L) 
IW  much   shielded   hy  the  spirit  of  the  lU't  a.s  if  lie  were  t'xempUMi  from  the 


tliat  it  is  to  Im'  used  for  medicinal  |)ur|M)seH, 

the  lU't  a 
jM'nalty  iiy  expH'sH  words.     Stater.  H';vr//, 


i;{.  luilietmeat. 

iji  a  prosecution  for  an  illegal  sale  of  li({uor  to  a  minor,  it  is  not  newssary  that 
the  indictment  should  allef^e  that  the  defendant  knew  that  tii*!  purchiiser 
was  a  minor.     McCuteheim  r.  People,  471 

14.  Same. 

In  a  prosecution  for  sellinj;  li(|Uor  to  Ix-  dnink  on  the  |>ieiuises,  it  is  not  nwos- 
sary  to  allej^e  in  the  »omi)laiiit,  or  t<t  pitive  on  the  trial,  that  the  liquor  was 
drunk  on  the  premises,  or  anywhere,     h'.inenman  r.  State,  4H4 

15.  Same. 

A  complaint  for  sellinf?  liipior  on  Sunday,  which  allej^es  the  sale  to  have  been 
"vn  or  about  the  iSd  day  of  Novcmlxir,  1873.  tlio  bivid  day  bciny  fcsuuday," 


!' 


INDEX. 


707 


liquor  \>y  liiH 

)ll  uf  UUKlMvit 

4(W 
int. 

hy  IiIh  ii^t'iil. 
for  liini  ttxlo 
])rt>)^iini|iti()ii 
ill  tilt;  woiM! 
471 


y  jMMnoii  who 
or  iiiert'ly  an 

4H2 


lilt  tlicy  luiiKt 
irc.iiiiistanct'H, 
,  iiikI  tl«>  fvi- 
lut  il<;ft>ii(ltuit 

4d4 


<'riiil  wlit'tlicr 

Vai.kkr  and 

471 


>  that  the  df>- 

vvi\  tin'  minor 

a  r('iu4oiia)>le 


in  ^(K)(l  faith, 

list',     lit'  is  iw 

from  tln!  iH'ii- 

477 


[in  ^'00(1  faith 

Hcnm'.     ll<-  Ls 

)ttitl  from  tins 

4IW 


iiecAwaary  that 

th«  imrchnNt'r 

471 


t  is  not  lUTOH- 
Lhe  liquor  was 

4.S4 


'  to  have  ht'oii 
ing  yuntlay," 


is  hail  on  a  motion  to  ijiuiHh,  thnc  LeinK  of  the  caacaico  of  the  offenEC.    ^- 

10.   VitrUmce. 

Uiulcr  an  indictment  for  a  salt!  of  liunor  to  A.,  proof  of  a  mUc  to  A.  and  li., 
jointly,  will  not  justify  a  conviitii  in.     Ilroivn  v.  Slate,  ioi 

17.  huUrliiftit. 

In  a  prosecution  for  scllrn},'  liquor  to  a  person  in  the  hahit  of  Lcettin^  intx)xitiit^'d, 
the  complaint  must  alTe(,ni  and  the  pi-(K)f  show  that  mv\\  rn-rson  wu«  ni  tho 
haliit  of  >,'eltinK  intoxieat^>d  at  the  time  the  sal(!  was  made  to  him.  ^<'»-''>' 
c.  Statf.  ''^•' 

18.  Krliliiirt: 

Testimony  that  A  bought  liquor  of  li,  w  cvidenco  that  Ji  sold  liquor  to  A 
llfitxiij  r.  Statt;  ^^'^ 

19.  liito.rkalinif  (lunlit;/  a  question  of  fart. 
Whether  ale  or  cider  is  an  intoxicating  liquor  is  a  quCHtion  of  fa«t,  and  not  of 
law.     Stale  r.  liiMIe,  ^'JO 

30.   hitoxicathuj  liquor. 

Whether  or  not  lager  heer  is  intoxic,  iting  is  a  question  of  fact,  and  not  of  law._ 
KiDDi.K,  C.  J.,  dissenting.     Lothrope  r  State.  4Jo 

See  IU'huan!)  and  Wikk. 


LOST  (JOODS. 
See  Lauckny. 

MARRIAGE. 
^V}lat  tvidtnce  is  competent  to  prove  in  erimial  cases. 

See  AmiLTKKY.     Riciamy. 

MEMORANDUM. 
Sec  EvinicNCE. 

NAME  or  INJURED  PERSON. 
SeoABHAUi/r  ANn  Ratteuy. 

NEWSPAPER. 

SOO  CoNTEMl'T. 

NEW  TRIAL. 

I.  Motion  fornew  trial. 

AfKdavit  of  co-defendant,  against  whom  then;  is  strong  cvidepce,  in  not  BUtficient 
on  a  motion  for  a  new  trial  on  the  ground  of  newly  discovered  evidenw. 
Delnnij  V  State,  °" 


!l 


J 


708   '■ 


INDEX. 


2.  Newly  discovered  evidence. 

On  the  trial  of  an  indictment  for  enibozzloniont,  the  state  pave  evidence  that 
the  watch  embezzled  was  worth  $U5.00.  The  nrisoner  yave  no  evidence  on 
this  point.  After  tiie  trial,  it  was  discovered  tliat  the  watch  was  not  worili 
over  f  10  or  $15.  No  ncKlisence  appoarintf  on  the  part  of  the  prisoner  or 
his  counsel,  it  was  held  tiiat  a  motion  for  a  now  tnal  on  this  jji-ound  wiis 
improperly  ovcn'uled.    State  v.  Foater,  116 

3.  Surprise. 

Where  the  testimony  of  the  principal  witness  for  tho  prosecution  on  the  tidal 
varies  materially  from  that  given  by  her  before  the  committin^r  justice,  who 
was  unexpectedly  absent  from  the  trial,  tin'  prisoner  is  entitled  to  a  new 
trial,  on  the  ground  of  surprise.    Jioxlci/  r.  Commonwealth,  Go") 

4.  The  fact  that  a  defendant  did  not  move  for  a  new  trial  in  tho  court  below 

will  not  bar  a  new  trial  on  the  reversal  of  an  erroneous  conviction  in  the 
supreme  court.    People  v.  Darric,  178 


NOLLE  PROSEQUL 

The  power  of  entering  a  nolle  prosequi  belongs  to  tho  prosecuting  officer  who 
represents  the  government,  and  not  to  the  court.    State  v.  Madigan,       542 


ti 


PERJURY. 

1.  Perjury  cannot  be  assigned  on  an  oath  administered  by  a  judge  of  election 

wno  has  not  been  himself  swoni.    IVnjgerstaff  r.  Commonwealth,  407 

2.  Amount  of  evidence  required  to  sustain  conviction, 

On  a  trial  for  pei:iury  to  justify  a  conviction  on  the  evidence  of  one  witness,  it  is 
not  necessarj'  that  such  witness  sliould  bi'  cDi-robonit^'d  liy  additional  circuin- 
stances  equivalent  to  the  oath  of  a  second  witness.  'J'ho  evidence;  to  sustain 
a  conviction  must  be  sometiiing  more  than  siiHicient  to  coiintfrbalanoe  tiie 
oath  of  the  prisoner  and  the  legal  presumption  of  his  innocence.  Stair  r. 
Heed,  .  .  5U'2 

3.  Indictment. 

Where,  in  an  indictment  for  peijury,  it  was  nlli-ged  that  the  dcfcndnnt,  dur- 
ing a  judicial  proceeding,  etc.,  had  falsely  sworn  to  ci'rtain  statements,  and 
then  i'mmediaWy  followed  an  allfgation  that  certain  of  sucli  stateiuents 
were  untrue,  and  there  was  no  allegation  that  the  statements,  thus  aloiu? 
denied  to  be  true,  had  been  material  to  the  issue  on  trial,  nor  did  they  of 
themselves  apjwar  to  have  bei  n  material :  7/rW,  that  tiie  indictment  was 
demurrable,  and  should  have  been  qua.shed.    llcmbree  r.  Stale,  501 

4.  Materiality  of  testimony. 

A  person  not  only  commits  perjurj;  by  swearing  falsely  and  <'0iTiii)tIy  as  to  tiie 
principal  fact  which  is  directly  in  issue,  but  also  in  swearing  falsely  and  cor- 
ruptly to  a  circumstance  materially  tending  toestablisli  ordisiu'dve  such  fact; 
and  this  is  so  without  regard  to  the  <|uesti(iii  whi-tlier  such  luineipal  fact 
does  or  does  not  exist.  It  is  as  much  perjury  to  estaliht  ii  the  trutii  by  I'lilso 
testimony  as  to  maintain  a  fiilseluMxl  I)y  false  eviilence,  and  the  fact  tliat 
the  former  may  lead  to  a  con-ect  decision  Ls  imiuatt.'rial.    Com,  v.  Grant,    500 


PERSONAL  RECOGNIZANCE. 
See  Rtjcoonizanck. 


r  -i 


T 


INDEX. 


709 


ridcnce  that 
evidence  on 
us  not  worth 
■  prisoner  or 

^  116 


on  the  trial 
justice,  who 
•d  to  a  new 

court  below 
iction  in  the 

178 


f  officer  who 
'gan,       542 


t)  of  election 
k,  497 


witness,  it  is 
onal  circnni- 
cn  to  sustiiin 
rbiihince  tiie 
ce.     Stall'  r. 


cndant,  din- 
tennMits,  iiiitl 
1  statenicntu 
1,  tints  alon(^ 
did  tlicy  (if 
licbneut  was 
504 


itly  an  to  tlio 
sely  and  cor- 
ive  such  fact; 
rincipal  fact 
ndii  liy  false 


nal 

liv 

h.'  fact  that 
Gnnil,    500 


PHOTOGRAPHY. 
See  Homicide. 

PLEA.. 
See  AniiAiaNMENT  and  Plea. 


POLICEMAN. 

It  appoarinff  that  respondent  wob  a  policeman,  the  court  will  presume  that  ho 
pToSf  the  ordiiiary  powei-s  of  a  pe.«;e  officer.    Doehnng  v.  State,         60 

POLLING  JURY. 
See  Jury. 

PRACTICE. 

1  rrcfcvce  of  respondent  in  coini.  ,  ,    .      .i 

mined.    State  v.  Undencood, 

2  rres<nccof)r,v>on(lcntontmlformmlemeamr. 

higton  V.  Ilciland, 

fatiUly  defective.    Cory  v.  State, 
4   Fraiuhdenthi  disiMsing  of  motigaged  propetig.  .     •*  •     „f 


state, 


5   Proceedings  on  appeal  after  prisoner's  escape. 
Wilson  V.  Commonwealth, 

",M'3  ™MT,t""fi  Um»  J.»  ekp.ed  for  the  capt«  or  surren- 
der  of  the  prisoner.    Moore  v.  State, 

1   DkcJiaraind  jnrii  on  Sundag.  ,. 

Tlfeccurmfy  adjudicate  on  Sunday  that  a  jur>-  cannot  agree,  and  tl.en  dj- 
charge  them.    People  v.  Lightner, 


710 


INDEX. 


8.  Recharg'inff  jury  in  ahsetiee  of  connsel  for  respondent. 

After  the  jury  have  been  charfjed  and  rctinxl,  it  is  eri'or  for  the  court  to  recall 
and  recharge  the  jury  in  the  absence  of  the  coJiuMel  for  tlie  resirondent, 
witliout  liis  consent.  It  is  an  infringement  of  the  constitutional  right  of 
the  respondent  to  have  the  privilege  and  benetit  of  counsel.  Mmiin  v.  Stnft', 

bm 

9.  E'-roneoiiS  Joint  verdict. 

Where  there  is  a  joint  verdict  and  judgment  atrainst  sevt'ral,  which  is  erroneous 
iw  to  one,  against  whom  there  wiw  no  evidence,  the  judgment  nmst  be  re- 
versed aa  to  all.  A  nolle  prosetiui  should  have  been  cnk'red  as  to  the  one 
against  whom  there  was  no  evidence,  or  a  verdict  of  acquittal  rendered  in 
his  favor.    Isaacs  v.  State,  lOii 

10.  Verdict  as  to  three  set  aside  as  to  tiro. 

A  joint  verdict  as  to  three,  eiToneons  as  to  two,  against  whom  there  is  not  suffi- 
cient evidence,  may  be  set  aside  as  to  those  two,  and  allowed  to  stand  as  to 
the  third,  against  whom  the  e\-idence  is  sufficient  to  sustain  the  verdict. 
Seboni  v.  State,  697 

TRELIMINARY  EXAMINATION. 

1.  Irregularity  of  preliminary  examination. 

A  plea  in  abatement  to  an  information,  filed  bv  a  prosecuting  attorney  and 
based  upon  the  return  made  to  the  circuit  by  a  committing  i.iagiwtrate, 
which  alleges  that  a  part  of  the  examination  was  had  on  a  legal  holiday,  is 
bad.    Hamilton  v.  People,  618 

2.  A  preliminary  examination  for  the  purpose  of  iiolding  to  bail  is  not  a  judicial 

proceeding,  and  mere  iiTegularities  do  not  vitiate  it.  Ibid. 

PRESUMP1^I0N.S. 
See  Evidence.    Fokoeuy.    Homicide. 

PROSECUTING  OFFICER. 


'(  hH 


1.  On  a  criminal  trial  for  homicide,  it  is  error  for  the  court  to  allow  counsel  for 

the  prosecution  in  addressing  the  jury  to  comment  on  the  frequency  of 
that  crime  in  the  community,  luid  say  to  the  jury  tliat  it  is  due  to  the 
lax  administration  of  the  law,  and  urge  them  to  make  iin  example  of  the 
respondent.    Ferguson  v.  State,  582 

2.  It  is  error  for  the  court  to  allow  a  prosecuting  officer  to  use  this  language  in  ad 

dressing  the  jury:  "  The  defendant  Wiis  such  a  scoundrel  tliat  he  was  com- 
pelled to  move  his  trial  fiom  Jones  county  to  a  county  where  he  was  not 
known."     State  v.  Smith,  580 

3.  It  is  error  for  the  court  to  allow  a  prosecuting  officer  to  use  this  language  in  ail- 

dressing  the  jury:  "The  bold  and  brazen-faced  niscal  had  the  impudence 
to  write  me  a  note  yesterday,  Ijeggin^  me  not  prosecute  him,  and  thivaten- 
ing  me  if  I  did,  he  would  get  the  legislature  to  impeach  me."  Ibid. 

4.  It  is  the  duty  of  the  court  to  protect  tlic  prisoner  from  unreasonable  and  unfair 

statements  and  arguments.  Ibid. 

5.  CotTupt  agreement. 

An  agreement  with  a  prosecuting  officer  that  if  respondent  will  plead  guilty 
to  an  infonnation,  resiMindent  shall  not  be  prosecuted  on  another  informa- 
tion then  pending  for  a  lik''  ott'ense,  is  a  cori-upt  a{xreemeut,  and  entitles 
the  respondent  to  no  indulgence  or  relief.    Golden  v.  State,  586 


lue  to  the 
pic  of  tin; 

582 


INDEX. 


711 


6.  Proaecution  hy  imvate  counsel. 

Counsel  employed  and  paid  by  priTate  parties  wiU  not  be  allowed  to  prosecute 
in  a  criniinal  caae,  against  the  objection  of  the  respondent,  especially  where 
the  private  party  ha«  a  pecuniary  interest  in  the  conviction  ot  Uie  accusexl. 
Meisterv.  People  (and  see  note,  p.  102),  *"• 

7.  Preliminarii  Examination, 

Preliminary  examinations  on  charges  of  felony  may  be  conducted  by  counsel 
employed  and  paid  by  private  parties.  ■''"«• 


PROSTITUTION. 
See  Abduction. 

PROVOCATION. 
See  Homicide. 

PUBLIC  RECORDS  AND  DOCUMENTS. 
See  Evidence. 


RAPE. 

1.  Evidence  of  precious  acta  of  illicit  intercourse  with  prosecutrix. 

On  a  trial  for  nirx',  where  the  prosecutrix  testified  that  at  the  time  of  the  act, 
he  wL  un«.nsl-ions  and  did  not  know  whether  defendant  hiul  ravished  her. 
and  a  physician  who  examined  her  had  been  allowed  to  testvty  that  some- 
bo  lyluid  had  sexual  int*'rcourse  with  her,  it  was  held  that  the  rcbpondenl 
hiul  a  ri-'ht  to  prove  previous  particular  acts  of  sexual  mtercourse  between 
the  prosecutrix  and  others.    Shirwin  v.  People,  w^W 

2.  Sufflciencif  of  evidence.  a,  ■    t  i 
The  evidence  set  forth  in  the  opinion  in  this  ca.se  was  held,  insufficient  to  sus- 
tain a  conviction  for  rape.    Jioxle;/  v.  Commonwealth,  boo 

3  Withdrawal  of  consent  once  given  hi/  prosecutrix. 
On  the  trial  of  a  man  for  rape  on  his  step- daughter,  a  girl  twelve  years  of  age, 
andsmallot' her  age,  it  was  held,  that  a  charge  that  "if  the  gir  ,  in  the  hi-st 
Sanceconsented  to  the  sexual  int«rcoui-se  ^vith  the  i-espondent,  but  if  after 
the  commencement  of  the  sexual  intercourse  she  Nvithdnnv  her  consent,  and 
the  n-'spondent  forcibly  continued  it  with  knowledge  of  her  dissent  this 
would  L  rape,"  w.v.  proper,  and  not  error  under  the  cu-cumstances  of  the 
case.    State  v.  Niles  (and  see  notes,  pp.  649,  660),  ow 

4.  Complaint.  ... 
A  complaint  by  the  prosecutrix  made  two  months  after  the  commission  of  a 

T^p^  is  admissibleVinst  the  resi^ndent  on  a  trial  for  rape.  Ihid. 

5.  Particulars  of  complaint  not  admissible.  ,    ,   -u  4.  tu 
On  a  trial  for  rape  the  prosecution  may  give  in  evidence  the  fact  that  the 

prosm  trS^nuJle  her  complaint  cliarging  that  the  offense  was  committed, 
Ct  it  is  ciTor  to  admit  the  particulai-s  of  the  charge  or  the  name  ot  the  per- 
son chiugcd  by  her. 

See  Assault  wrru  Intent  to  Commit  Rape. 


ri2 


INDEX. 


REASONABLE  DOUBT. 

It  is  tho  duty  of  tho  court  wlitni  chamnf?  tho  jury  that  they  must  bo  sntiHficd 
beyond  a  n'lisouablt'  doubt  of  tno  rosiKjndent's  (fuilt  to  exphiin  wluit  w  ii 
rt'iujonablu  doubt.     State  r  Jlvid,  602 


KECAFnON  OF  STOLEN  niOPERTY  BY  FORCE. 
Sec  Assault  and  Battkky. 

RECENT  POSSESSION  OF  STOLEN  PROPERTY. 
See  BuuoLAUY.    Laucenv. 


RECOGNIZANCE. 

Payol  refmjnizntice, 

A  parol  prniiiisc  to  apjioar  bcforo  a  public  inaffistratc  has  no  legal  validity  or 
binduig  force.     Citif  of  liloominyton  v.  Jlfiluiu!,  60U 


RECORD. 

1 .  It  must  affiniiativcly  ai)poar  on  the  record  that  an  indictment  was  returned  into 

court.    Ai/lcsirorth  c.  I'eojJc,  004 

2.  Where  the  record  does  not  showafrirniatively  that  before  sentence  Wiis  pro- 

nounced the  resiwndent  was  asked  if  he  had  anythin^r  to  say  why  sentence 
should  not  be  pa«sed  upon  him,  nentence  will  1m!  reversed  and  the  prisoner 
remanded  to  be  sentenced  afresh,  )«ut  the  verdict  is  not  allected.  McCue  r. 
t'oinmoHiridlth,  2()S 

3.  Judgment  will  be  reversed  when  the  record  doc's  not  afhnnatively  show  that 

tiie  respondent  was  jiresent  throuyhout  the  trial,  and  when  the  verdict  was 
rendered.     Stithhs  r.  Stale,  60S 

See  AUUAIGNMENT  AND  Pl.EA. 


li; 


ROBBERY. 

Eridence  — lies  gcstw. 

On  a  trial  for  robbery,  whore  tlio  prosecutor  swore  t/i  havinpr  l>oen  knocked 
down  and  rolibed,  it  is  competent  to  prove  by  witnesses  wlio  came  up  im- 
mediately, that  he  then  told  them  lie  had  Ijeen  robbed.  Such  a  statement 
is  a  part  of  the  res  (jentw,    Lambert  v.  People,  000 


REPUTATION  OF  Dni.r.ASED. 
See  Homicide. 


SEDUCTION. 
1.  WIuU  h  seduction. 

To  constitute  the  crime  of  seduction,  tho  woman  must,  relying  npon  some  sutfi- 
cient  promise  or  inducement,  be  drawn  aside  from  the  path  of  virtue  she  was 


mDEX. 


713 


act  Heduction.    reoph  v.  Clark  (iind  sue  nolo,  p.  bbi), 
2   Prior  acts  of  iUlcit  intercourse  hy  prosecutrix. 

Hlie  Imd  had  ilUcit  intorcourso  with  unothor. 
3.  Attempt  to  entrap  respondent  into  marriage. 

iinpoi-siblt'. 

evidence  as  to  the  other  iicts  charged  IS  admissible.  -«<"«• 


6.  Irrelevant  evidence.  .        , 

On  a  trial  for  seduction,  evidence  of.Ulicit  i"t.n-course  between  tlie  paxiies  sub 
stMuent  to  the  lUleged  seduction  w  uri-elevaut  and  inaduubsible. 


Hid. 


SELF  DEFENSE. 
Sec  Homicide. 


SENTENCE. 

a  fonncr  sentence.    I'rincc  v.  State, 

2   Siiv>ended  sentence -Sentence  hy  a  judyc  who  did  not  try  the  cause 

Z.  buspemitii  pi,nv,rc  of  mahc  oas  njury  to  a  dwolhnp,  son- 

Whero  nnon  a  plea  ^^.f "    \  ^^^^^if  ^^^^^  erm,  and  the  prisoner  allowed  to  go 

tenccilias  l«"en  «">^J'«'"''«}  ""^^  "'i^^ "'oniiiva^  and  the  sutsequent  term 

on  his  "-"  "XriS   uS  &^^^^^^^^    til,  it  is  not  conVtont  for 

StE^Sir^si  »^ta;Kt  ^i^^ 

KtlKKiaS  Ss£?.Ja^^S^y  overruling  liis  decEL. 
]feaver  v.  Veople, 

Citaiccd  afe'.li.    Stale  f.  (lra,j, 


\» 


714 


INDEX. 


4.  Impriaontneiit  in  lU/aiiU  of  fine. 

Power  to  puitish  by  finu  or  i  in  prison  luont  tlooH  not  include  power  to  imprison  in 
default  of  payuiunt  of  a  tine.    Jiriesuick  v.  Muijor,  etc.,  v/  lininmkk,  55U 

SILENCE  AS  AN  ADMISSION. 

SOO  A0MI8HION8  AND  Co>'FKHSlON8. 

STATUTES  CONSTIIUED. 

See  AnoiiTioN.     Assault  and  Batteuy.     DuiiNiNa.     Kmoezzlement. 
Lti^uun  Sei.linu. 


STATUTORY  C'(  >NSTIlUCTION. 

1.  Altlionjfh  it  is  >?oncralIy  tnio  that  wlicro  tlie  IfKHslatiiro  adopts  8uV«tjintially  the 

statuU'  of  anotlit'r  state,  it  is  prfsinncd  to  adopt  also  tiie  oonHtniction  prtvi- 
ously  ffiven  to  it  by  the  courts  of  that  stat*!;  vi't  tlie  It'tfiHiature  will  not  Ito 
piTsuiued  to  have  lulopti'd  sufli  construetioii  where  such  eonstnution  is  in- 
consistent with  tiie  spirit  and  jiolicy  of  the  laws  of  the  state  luloptiiif,'  tlie 
statute.    McCutcheon  i\  I'lopli;  471 

2.  Statutes  are  to  be  interpret^vl  iut«rdinK  to  their  natural  and  obvious  ineaninj;, 

and  where  there  is  no  anibij^uity  in  the  luiiffuaKe'  and  its  lueaiiin^j  ami  nur- 
lX)se  are  clear,  courts  ure  not  autliori/.ed  either  to  limit  or  exttind  thelan- 
yuaye  of  the  act  by  construction.    Cvarfoxn  t:  Sttite,  400 


STEP-FATHER. 
See  AssAUL'i  and  Datteiit. 

SURPRISE. 

See  New  Tkiaj,. 
y 

SUSPENDED  SENTENCE. 
See  Sentencc. 

SUSTAINING  IMPEACHED  WITNESS. 
Sec  Witness. 

TENOR. 
See  Fouoeuy. 


VARIANCE. 

See  Assault  with  Intent  to  Commit  Rave.   Forokuy.   Larceny.   Liquor 

Selling. 


INDl^. 


715 


wcr  to  impriaon  in 
\)f  Umnmick,  WO 


EMDEZilXEMENT. 


VENUE. 

1    Chunrjeof  i'ef»if,  stittutc  constnu'd,  . ,     ..    i        „ 

lueiitioneci.     Slate  v.  Underwood, 
^!;;«»„t  e™  h.vo  but  one  *3,ot  3^^^^ 

fom  unoUier  jua«c  oii  the  Hiiiue  ground.    Line  v.  biate, 


ptfl8uV,stantiallytlio 

!  constniction  im-vi- 

l^wlaturi!  will  not  In? 

constnution  ih  m- 

Htate  luloptiiif,'  W] 
An 

111  obvious  nn'iinins?, 

ts  nnninintr  und  Pur- 

it  or  exUsnil  the  lan- 

4oU 


:ss. 


.   L-vncKN-Y.   Liquor 


VERDICT. 

{he  Sunt  charging  the  higher  otlense.    Esles  v.  btatc,  ^ 

2    Corrertha  ilteffal  verdict.  ,   ■,  ,  •  \  l 

the  iwiue.     Stide  ».  Umhop, 

'i.^SST:SsKoSS'52SX»5sSi 

McCoj  r.  Stale, 

^nEl'h;:Ue^-.t  against  '^POn'^f^^.&^g  ^"^  ««  ^'^"^'^' ""  '"S 
of  guilty  M  acccdeory  after  the  fact  is  illegal. 

See  Practice. 


WAIVER. 

1    Asking  time  to  plead  is  equivalent  io  pleading  in  wai^'ing  defects  in  tiie^^- 
raigument.    People  v.  Liijlitnet; 

9    Oblrct'wti  not  made  at  trial.  i  •  i   i.i  „*. 

Slate, 

WAREHOUSE. 

otto  »*  an.;  ™'"  7  «    ;' X"a  toSwr  with  about  two  «CR'«  of  land, 
K,fuSff  Si'ff^S'S^t  «'  satos  of  wMch  a,.,  kept  locked,  « 

a  wai-eliouse.    ISeiiuett  v.  Stale,  ^ 


716 


INDEX. 


WARRANT  SIGNED  IN  BLANK. 
Sec  Homicide. 


u     i 


y& 


WITNESS. 

1.  Capacity  of  child  as  witucss. 

A  pirl  whom  tlio  court  by  inspection  dcterminccl  to  be  between  nine  and  ten 
yeiirs  old,  beinfjr  ottered  as  a  wtnes?,  was  object<?d  to.  Heing  examined  as 
to  iier  qualifications,  she  appeared  very  nervous  and  frightened,  and  said 
she  could  not  tell  her  age,  and  did  not  know  the  nature  or  obhgation  of  an 
oath,  or  what  tJie  consequences  would  be  of  swearing  falsely.  On  a  re- 
examination she  sai'l  she  was  the  daughter  of  the  respondent,  knew  her 
pniyi'rs,  could  read  some,  believed  in  (.lod,  and  thought  it  wrong  to  tell  lien: 
JItiif,  tliat  she  was  prop(;rly  received  as  a  witness.    State  v.  Scanlaii,       li^b 

2.  CounKtoH'tj  of  witness. 

Tlie  question  of  the  competency  of  a  witness  is  a  question  of  fact,  to  be  deter- 
muK'il  by  tJv)  trial  judg(>  by  personal  inspection  and  oral  examuiation,  and 
hLi  decision  iu  not  subject  to  rerision .  Ibid. 

3.  Impeachment. 

In  iiupenching  the  character  of  a  witness,  evidence  of  tlic  bad  repute  of  his 
family  or  associates  is  urelevant  and  ijiatlmissible.  Kean  v.  Commonwealth, 

199 

4.  Impeaching  question. 

It  ia  proner  to  ask  a  sustaining  witness  on  cross-examination,  whether  he  had 
siiid  lie  would  not  believe  the  impeached  witness  under  oath.  Ilainilton  i'. 
State,  GIS 

5.  It  is  proper  to  ask  an  impeaching  witness  who  hiw  testified  to  the  bad  repu- 

tation of  an  impeached  witness  for  tnitii  imd  venwity,  whether"  from  fliat 
reputation  Ije  would  believe  the  hnpeaciied  witness  under  oath.  Jbid. 

C.  Siu'itaining  impeacJied  witness. 

It  is  not  conipi'tent  to  sustain  the  credit  o<  a  witnef^s,  who  h;w  boen  inipeaclied 
by  jn-oof  that  he  had  mailo  ditt'erent  statements,  of  the  circumstances  t<  stitied 
to  by  him  on  tlie  trial,  by  evidence  of  his  gfnoral  reputation  for  truth  and 
veracity.    I'eojjle  v.  Olmstead,  'Ml 

7,  Same. 

Wluni  tiw  chara^tor  of  a  witness  I\as  been  attacked  In*  evid>^nce  tlmt  he  has 
been  convicterl  of  felony,  it  may  lie  sustiuued  by  "vidence  of  hi'  general 
reputation  for  truth  and  integrity.    People  i:  Amaneas,  I!.(7 

8.  Cross-e.fa»i illation. 

Tlie  respondent  ha.s  a  right  on  cross-examination  of  a  witness  forthe  provectitor 
to  draw  out  from  him  c  idence  which  tends  to  contradict  mat<'rial  evidi'nco 
which  hiis  been  given  by  another  witness  forthe  prosecution.  Hamilton  v. 
State,  CIS 


i-oen  nine  aiul  ton 
ioing  exiUiiiiuHl  as 
u'htoned,  smd  suid 
ir  obligation  of  an 
faisfly.  On  a  ro- 
jondent,  knew  her 
;  wronjj;  to  toll  ui'hj 
f,  Saoihiii,       1>^5 


if  f!U!t,  tobedetoi- 

l  examination,  and 

Ibid. 


i  bad  repute  of  his 
lit',  CommonwvifUli, 

1 JJ 


ion,  whether  he  had 

oath.    Iluiiiiltonj. 

CIS 


ed  to  the  bad  remi- 
.  whethei-  from  tliat 


er 


oatli. 


Ibid. 


hiifl  boen  impeaehed 
ircnmstances  t(  stitiet' 
utation  for  tnitli  and 


I 


pvidencft  that  he  has 
idence  of  hi-  geiieiul 


„osb  for  the  prosecutor 
Uet  niat4M-ial  evidenco 
icution.    llmwUon  V. 


